By: Rosie Gil, J.D. Candidate, May 2018, St. Thomas University School of Law.

Should athletes get a slap on the wrist for marijuana use or should sports organizations put a tighter grip on their athletes?

            Laws have changed since the beginning of professional sports. As we all know, California was the first state to allow the use of medicinal marijuana. Since 1996, twenty-eight other states, and Washington, D.C., have joined California and enacted similar laws allowing the use of marijuana. As opposed to many state laws, the federal government still classifies marijuana as a “Schedule I” controlled substance. Being classified alongside heroin, LSD, and ecstasy, as a Schedule I controlled substance, means they have no accepted medical use and a high potential for dependency and abuse. But is marijuana even comparable to heroin, LSD, and ecstasy?

Many athletes advocate for the use of marijuana to relieve pain resulting from sports-related injuries. Among professional sports, the National Football League (“NFL”) has some of the strictest rules when it comes to their drug policies. In 1982, the NFL adopted a drug-testing program in its collective bargaining agreement (“CBA”). Former NFL Commissioner Pete Rozelle attempted to stay active in establishing key parts of the NFL’s drug policies with the intent to use his power to protect the “integrity of the game” by making the testing program stricter and more effective.

The current CBA, adopted in 2011, addresses how recreational drugs such as marijuana, opiates, PCP, and amphetamines are dealt with more leniently than performance enhancing drugs. Sanctions resulting from steroid and recreational drug use are dealt with differently in the NFL. For example, first-time offenders of steroids result in a four-game suspension, six-games for a second offense, and a one-year suspension for any offenses thereafter. Whereas marijuana and prescription pill users are not penalized for their drug use until their third offense (resulting in a four-game suspension and at least a one-year suspension after that).

A former Denver Broncos tight end, Nate Jackson, suffered from various injuries such as a broken tibia, dislocated shoulders, and misaligned clavicles, not to mention suffering terrible head and neck trauma. During an interview with the Denver Post, Jackson expressed how players in the NFL “live in a great deal of pain on a daily basis, and marijuana helps with that.” Jackson also mentioned how “Teams pass out opioid painkillers, which are highly addictive . . . .  And that can affect a player long after they are done playing. Marijuana doesn’t have those types of effects.” Alongside Jackson, senior ESPN writer, Howard Bryant, has even expressed how, compared to oxycontin, it would be “immoral to deny players the right to use it [marijuana].” Bryant based his opinion on the history of any oxycodone-based pills, which have an extremely high potential of dependency especially among previous NFL all-stars.

The National Basketball Association’s (“NBA”) CBA is different than the NFL’s. The NBA’s agreement includes that “Veteran players are subject to four random drug tests per year. The prior provision allowed only one test during training cramp and additional tests if reasonable cause existed. Rookies are subject to unlimited testing.”[1] The 2011 agreement incorporates the same provision and only indicates that players cannot be tested on game day. The NBA’s agreement treats recreational drugs tougher than performance-enhancing drugs, penalizing a first-time offender with a slap on the wrist, but giving repeat offenders a five-game suspension.

Although the NBA’s drug policy is more lenient than the NFL’s, Golden State Warriors coach Steve Kerr agrees with Jackson and Bryant in believing, as opposed to other prescription drugs, marijuana should be used as a painkiller and believes any future CBA should include the acceptance of medical marijuana. Kerr’s opinion stems from his recent use of marijuana to relieve pain after previous procedures and surgeries that led him to miss most of the 2015-2016 regular season as head coach.

As opposed to the NFL and the NBA, Major League Baseball (“MLB”) never had a broad drug-testing program enacted until the 2002 CBA. When talking about drug testing, the players association allowed for random drug testing starting in 2003 and, because of congressional pressures, the players association was forced to increase testing and apply harsher suspensions and penalties. The change in the agreement resulted when Sports Illustrated came out with a list of 104 players who tested positive for banned substances in 2003. One of which was New York Yankee’s very own, Alex Rodriguez, who tested positive for two anabolic steroids during his 2003 MVP season with the Texas Rangers.

Unilaterally, the MLB implemented random blood tests on minor league players to detect HGH usage, but beginning with the 2012 season, all major league players were subject to HGH testing during spring training and subject to random testing based on “reasonable cause” during the rest of the year. However, starting after the 2012 season, all major league players are to be subject to random, unannounced testing.

Now, many athletes qualify to receive medicinal marijuana. Although qualifying conditions vary by state, some states have adopted similar conditions that allow people to become medical marijuana patients. Some conditions are: chronic pain, nausea, seizures, muscle spasms, and migraines. Some, if not all, of these conditions are felt by nearly all athletes in professional sports. But, if drug policies do not change fast, not only could athletes be penalized criminally, but their respective organizations would penalize them as well. Athletes can also be subject to contract cancellation and loss of team and individual endorsements. So is it time to update drug policies and eradicate the word  “marijuana” from their CBAs because of the legalization and general acceptance of marijuana as potentially the best painkiller on the market? Or should CBAs include stricter rules that limit the use of marijuana on and off the field?

[1]Matthew J. Mitten Et Al., Sports Law and Regulation 518 (3d Ed. 2013).