Current State and Federal Drug Policies in America: An Overview Marijuana and Professional Sports Arguments For and Against Current Marijuana Policies in Professional Sports Leagues Questions Abound and the Controversy Continues February 25, 2019 ARTICLES It’s Time to Get Real about Marijuana and Professional Sports: Part 1 Calls to remove marijuana from the list of banned substances have become more frequent, and players are openly advocating for legalization

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• Current State and Federal Drug Policies in America: An Overview

• Marijuana and Professional Sports

• Arguments For and Against Current Marijuana Policies in Professional Sports Leagues

• Questions Abound and the Controversy Continues

February 25, 2019 ARTICLES

It’s Time to Get Real about Marijuana and Professional Sports: Part 1

Calls to remove marijuana from the list of banned substances have become more frequent, and players are openly advocating for legalization. By Joseph M. Hanna

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This is the first article of a two-part series focused on marijuana’s impact on professional sports and current developments in professional league policies, legislation, and elsewhere.

Since 2013, 9 U.S. states and Washington, D.C., have passed laws legalizing recreational marijuana, while 31 states passed laws legalizing medical marijuana. According to a 2018 Pew Research survey, 62 percent of Americans say marijuana should be legalized; Michigan, New Jersey, North Dakota, Oklahoma, and Utah are expected to legalize recreational marijuana in 2018. As public perception of marijuana use for medicinal and recreational purposes continues shifting toward tolerance and even creative embrace, employers in nearly every industry struggle to adapt to shifting state laws, conflicts between state and federal laws, and pressure from employees’ expectations. Nowhere has conflict over employers’ marijuana polices been more prominent than in America’s professional sports leagues.

Eighty-seven professional U.S. sports teams currently have athletes playing professionally in a state that legalized medical or recreational marijuana. Complicating matters further, nine professional Canadian teams compete with U.S. teams in predominantly American leagues—and on October 17, 2018, recreational use of marijuana officially became legal across Canada. However, regardless of state, federal, or international law, the World Anti-Doping Agency (WADA), National Basketball Association (NBA), National Football League (NFL), National Collegiate Athletic Association (NCAA), Major League Soccer (MLS), Major League Baseball (MLB), and Ultimate Fighting Championship (UFC) all ban the use of marijuana within their substance abuse policies. The National Hockey League (NHL) is the only professional sports league that does not include marijuana on its list of banned substances.

The marijuana debate within professional sports, like the rest of the country, is stronger than ever. Calls to remove marijuana from the list of banned substances have become more frequent, in line with the increase in recent suspensions and fines, alleged rampant use among professional athletes, and players openly advocating for legalization.

Current State and Federal Drug Policies in America: An Overview

In 1970, President Richard Nixon signed the Controlled Substances Act (CSA), the current federal drug policy that regulates the manufacture, importation, possession, use, and distribution of certain substances. Under section 811 of the CSA, banned substances are classified into five schedules. Schedule I substances, defined as those with a high potential for abuse, are not currently accepted as a form of medical treatment and cannot be safely used under the supervision of a medical care provider. Currently, marijuana is defined as a Schedule I substance. However, in 2013, President Barack Obama implemented the Cole Memorandum, which directed U.S. attorneys to prosecute only a small set of marijuana cases involving minors, gangs, or organized crime; the sale of marijuana in interstate commerce; and the cultivation of marijuana on federal land.

On September 30, 2018, President Donald Trump signed an extension of the Rohrabacher-Farr Amendment, a 2014 law preventing the federal government from spending money on medical marijuana prosecutions, as long as growers and dispensaries carefully abide by state laws—except, however, recreational marijuana. As a result, although nine states and Washington, D.C., allow for recreational marijuana use, growers and dispensaries remain vulnerable to federal prosecution. In addition, the amendment states that the Department of Justice (DOJ) will not use funds to prevent listed states and territories from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” However, the term “implementing” may still allow the DOJ to prosecute marijuana operations that are legal under state law.

Most importantly, the amendment was, and continues to be, approved only as an amendment to the federal budget. Therefore, the law’s lifespan is tied to annual renewal by Congress. However, a new budget has not been approved since 2015, leaving the amendment’s long-term status unresolved. Despite this uncertainty, the amendment has continued to be renewed through various emergency spending legislation. In addition, in January 2018, the DOJ rescinded the Cole Memorandum and asked U.S. attorneys to resume prosecution of violators under the CSA. Should the president choose not to extend the amendment, there is a possibility that the DOJ may begin prosecuting marijuana businesses, regardless of the legality of the drug within a given state.

In the face of uncertainty, many states passed their own recreational and medical marijuana legislation, and state courts continue to enforce and interpret the laws. For example, in June 2017, a Rhode Island state court ruled that a potential employer could not refuse to hire a job candidate simply because she disclosed that she was a medical marijuana cardholder and would fail the preemployment drug test. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. Ct. May 23, 2017). In July 2017, a Massachusetts state court held that a medical marijuana user who failed a drug test and was subsequently fired could bring a disability discrimination lawsuit. According to the court, under the Massachusetts disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use. See Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E.3d 37 (Mass. 2017).

Marijuana and Professional Sports

Professional sports leagues conduct testing for illegal substances for the same reason as employers in most other sectors: because of the possible negative consequences for employee health and workplace safety, and to avoid entanglements with law enforcement. However, unlike regular employers, professional sports leagues have additional reasons for conducting drug tests. The profitability of professional sports leagues is tied to the on-field success of their players, fan support, and the preservation of the leagues’ integrity. Drug testing protects a team’s investments in a player and avoids negative publicity that results when a player suffers adverse health or legal consequences associated with illegal drug use. Some, like Washington, D.C., attorneys Mark M. Rabuano and Deanne L. Ayers, observed that professional sports leagues have a legitimate interest in controlling illegal drug use to ensure that a player’s job performance will not be affected by illegal drugs. Ayers observed that in professional sports in particular, drug use is likely to result in athletes’ irregular attendance at practices and games, subpar performance, and additional costs incurred for the rehabilitation of players.

Each league has a collective bargaining agreement outlining its drug testing procedure. For example, between April 20 (the unofficial holiday when many Americans celebrate and consume marijuana) and August 9, NFL players are subject to one random drug test. Also, prospective NFL players are subject to one drug test before the NFL Combine. If the player passes, he will not be tested until the following season; however, if the player fails the drug test, he must enter an intervention program. If an NFL player fails multiple drug tests, he faces fines and suspension without pay, and the NFL could even ban the player for up to one year.

The NBA, through its collective bargaining agreement, can test a player no more than four times during the season and no more than two times during the off-season. In addition, NBA players are subject to “reasonable cause testing.” If the NBA has reasonable cause to believe that a player is engaged in the use, possession, or distribution of a prohibited substance, the NBA may request a conference with an “independent expert” who will determine whether reasonable cause exists to test the player. If the player fails a drug test, he is required to participate in the league’s illegal drug program. If the player fails the drug test for a second time, the player is fined $25,000. If the player fails the drug test for a third time, he is suspended for five games, and each violation thereafter increases the suspension by five games.

Questions Abound and the Controversy Continues

Law and the public’s perception of marijuana have changed over time, even as the debate continues with many weighing the pros and cons of its legal role in society. The arena of professional sports and sports leagues is a microcosm that highlights the debate about marijuana in society and also deals with unique controversies due to issues specific to athletics. With developments at both the state and federal levels, questions about marijuana’s future will likely arise with even greater frequency.

The second part of this two-part series will discuss some of these questions about marijuana’s future in the context of sports medicine, including its potential impact with the opioid epidemic and the research on chronic traumatic encephalopathy.