Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, July 31, 2018

Noting the enduring challenges for sports leagues with state marijuana reforms in tension with federal prohibition

Download (3)Regular readers know that I find fascinating the intersections between sports and marijuana reform, but I have not blogged on the subject much lately.  This new article, headlined "Leagues being pushed to allow medical marijuana use for pain management," gives me an excuse to return to this topic. Here are excerpts:

Between legalization in states with multiple professional sports franchises (like California), and increasing numbers of studies showing marijuana to be largely benign (and perhaps even beneficial) in comparison to opiates, the tide of public opinion continues to turn.  And for now, certain pro sports leagues are getting around the federal prohibition by essentially embracing a wink-and-nod policy.

The National Hockey League doesn’t list cannabis as a banned substance and doesn’t appear to care much about positive cannabis tests. Major League Baseball lists cannabis as a “drug of abuse,” but only tests if there is reasonable cause (and page 40 of the league’s drug policy specifically states that they don’t issue suspensions for a positive test for marijuana) — though, oddly enough, Minor League Baseball does still test and suspend athletes for marijuana use. In addition, the World Anti-Doping Agency, which oversees Olympic policy, has also loosened its standards on what constitutes a positive test, allowing up to 150 nanograms per milliliter (ng/ml) of blood—which essentially means you’d need to be actively high in order to test positive.

But in the NBA and NFL — two leagues in which former players have estimated that more than 80 percent of their peers used marijuana during their careers—there remains a punitive cost. The NFL’s threshold for a positive test is 35 ng/ml; the NBA’s is 15 ng/ml. Repeated infractions, in both leagues, can result in a suspension.

In large part, the NBA’s policy is based on perception: Former commissioner David Stern, in an interview with ex-NBA player and marijuana advocate Al Harrington, said that the league tightened its rules, in part, because “some of our players came to us and said some of these guys are high coming into the game,” and because of the long-held theory (now largely debunked) that marijuana is a gateway drug to harder substances.  Stern now believes the league’s collective bargaining agreement should be altered so that players should be allowed to do whatever is legal in their individual state.  His successor as commissioner, Adam Silver, has embraced some of the most progressive policies of any major sports league, and has said that he’s open to legalizing medical marijuana (though how that would work in states where marijuana remains illegal is unclear).

And that leaves the NFL, whose players — given the inherently violent nature of their sport — may have the best case of all for embracing medical marijuana.  Yet while the NFL has said it’s open to working with its players association on a study of marijuana, it has continued to suspend a number of players for positive drug tests.  In a 2017 radio interview, NFL commissioner Roger Goodell expressed concerns that marijuana use “can be negative to the health of our players.” In a way, this isn’t surprising, given the NFL’s overarching cautiousness when it comes to both political and social issues.  But that policy will face continued challenges from ex-NFL players like [Eugene] Monroe, who point to mounting evidence that cannabis is a safer alternative to the opiates they took regularly in order to sustain their careers.

http://lawprofessors.typepad.com/marijuana_law/2018/07/noting-the-enduring-challenges-for-sports-leagues-with-state-marijuana-reforms-in-tension-with-feder.html

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