Marijuana Law, Policy & Reform

Student presentation examines marijuana's history in sports and in the sports industry

Highligthing the diversity of issues covered when students in my Marijuana Law, Policy & Reform seminar "take over" the second half of the class through their presentations, the third presentation scheduled for the coming week will look at sports.  Specifically, this student will explore "history of marijuana in sports, both domestically and internationally, as well as the impact of marijuana legalization in the sports industry," and here is how he describes his topic along with background readings:

The sports industry has frequently found itself in and around the conversations regarding marijuana use and regulation.  Particularly in the US, many prominent athletes over the years have been vocal advocates for the legalization of cannabis both medically and recreationally.  Not only have athletes made the news for their advocacy of cannabis legalization, but on multiple occasions, athletes have received negative publicity for their use of cannabis.  My paper and presentation, will discuss the history of marijuana in sports, both domestically and internationally, as well as the impact of marijuana legalization in the sports industry. 

The most important organization when it comes to marijuana use in sports is the World Anti-Doping Association (WADA).  WADA was created in 1999 and subsequently established the world anti-doping code in 2003.  As the name of the organization and code indicate, WADA was generally focused on those drugs that have performance enhancing effects, but also banned those substances that go against the “spirit of sport.”  Since the inception of the Code in 2003, the topic of cannabis as a banned substance has come under fire on multiple occasions.  In 2021, the inclusion of cannabis on the list drew wide-spread media attention and led WADA to conduct an extensive review of the substance.  Despite this, WADA maintained their position of having cannabis banned.

While WADA is a prominent voice in the sports world, and its code has been adopted by more than 660 organizations, is not applicable across all sports and leagues.  In particular, the leagues we are most accustomed to in the US (NFL, MLB, NBA, NHL, NCAA) do not abide by the WADA code.  Instead these organizations apply their own rules.  As such, they have been more open to adapting with the times and changing their restrictions on marijuana use. 

Background Reading:

WADA, Who We Are 

WADA, The Prohibited List

WADA, Summary of Major Modifications and Explanatory Notes for 2023 Prohibited List

Marijuana Moment, NCAA Panel Formally Recommends Removing Marijuana From Banned Substances List For College Athletes (Sept. 22, 2023)

Axios, Where it stands: Weed policies by U.S. sports league (Oct 20, 2021).

"What's Baked Within WADA’s 'Spirit of Sport' Criterion? Unpacking the Framework that Keeps Cannabis on the Prohibited Substance List"

I continue to be excited to post some the latest papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center in order to highlight great work by OSU law students and recent graduates on many important and cutting-edge topics. The title of this post is the title of this new paper authored by Lily Dickson, who is in her final year as a student at The Ohio State University Moritz College of Law. Here is its abstract:

The world is struggling to conceptualize a standard approach to cannabis policy.  Some states ban cannabis entirely, some states allow it for medical use, others fully legalize it.  At the same time, more and more athletes are coming forward about their experience with cannabis and its benefits.  WADA is the primary international source of power over both drug regulation and athletic federations.  Thus, WADA has the unique potential to develop a standardized approach to cannabis that can be applied consistently across all sports and countries. Despite WADA’s potential to use the “universal language” of sports for change, cannabis policy in sports is currently stagnant due to WADA’s presence in the conversation.  One obstacle to meaningful dialogue between athletic federations regarding cannabis use in sport first lies with WADA’s framework.  For a substance or method to be added to WADA’s Prohibited Substance List, it must meet at least two of the following three criteria: (1) it has the potential to enhance sports performance, (2) it represents an actual or potential health risk to athletes, or (3) it violates the Spirit of Sport.  Currently, the Spirit of Sport criterion is invoked as a catch-all. As opposed to the first two criteria, “the spirit of sport” it is inherently subjective.  As a result, it can have a significant impact on the way that anti-doping policies related to cannabis use are developed and enforced.  This paper suggests that WADA would be better equipped to approach the cannabis problem after (1) procedural change within WADA’s leadership structure to allow consideration of the changing legal and social context of cannabis use and (2) philosophical change to the principles underlying the Spirit of Sport criterion with the procedural changes in place.

Student presentation exploring World Anti-Doping Agency’s approach to cannabis

Showcasing the diversity of issues covered when students in my Marijuana Law, Policy & Reform seminar "take over" the second half of the class by giving presentations, the third presentation scheduled for next week will look at sports.  Specifically, my student will explore "reconceptualizing WADA’s 'spirit of sport' criterion," and here is how she has described her topic along with background readings:

Reconceptualizing WADA’s “spirit of sport” criterion:

            In order to be placed on the World Anti-Doping Agency’s prohibited substance list, two out of three criteria must be met: (1) posing a health risk to athletes, (2) potentially enhancing performance or (3) violating the spirit of sport.  While the first two criterion are rooted in fact and science, the last criterion has raised controversy as a “catch-all provision” that is based on vague ideals with little operative force.

Last September, WADA announced that Cannabis would remain on the 2022 prohibited list.  Interestingly enough, WADA only cited to this third criterion, “the spirit of sport”, in their explanation as to why cannabis remains on the list.

This presentation briefly explores why cannabis does not meet the first two criterion, and then moves to attack the use of the third criterion as an overreach of WADA’s power.  After exploring the consistent drug use in sport dating back to 776 BCE, and then discussing the modern use of WADA’s therapeutic use exemption, it becomes clear that drug use is not the antithesis of “the spirit of sport”.  Finally, this presentation makes procedural recommendations to WADA and questions whether the spirit of sport criterion should be abolished, edited, or left as-is.

Suggested pre-reads:

From CBS News, "World Anti-Doping Agency rules that marijuana will remain on banned substances list"

From Athletes for Care, "It’s Time to Stop Demonizing Athletes for Using Marijuana"

From Leafly.com, "Cannabis in Sports: Unpacking Exemptions for Therapeutic Use"

From Scientific American, "Weed Shouldn’t Be Banned for Elite Athletes, Some Experts Say"

"Long Overdue, Cannabis Needs to Have a Place in Professional Sports"

I am so happy to be able to continue catching up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   To that end, the title of this post is the title of this paper authored by Caroline Rice, a rising 3L at The Ohio State University Moritz College of Law. Here is its abstract:

Although most professional sport leagues amongst the Big Four (National Football League, National Basketball Association, Major League Baseball, and National Hockey League) have restrictions on athletes’ use of cannabis, many professional athletes have spoken out about turning to cannabis as relief for the chronic pain caused by playing professional sports.  This paper explores how as a result of cannabis being wrongly classified as a Schedule I drug on the Controlled Substances Act, professional leagues followed suit restricting cannabis use and leaving athletes with rigid marijuana testing policies and an overuse of prescription painkillers.  This paper then analyzes the medicinal benefits of marijuana use for professional athletes, and subsequently argues for further use of cannabis in professional sports in the United States. 

Student presentation exploring "marijuana advertising and professional sports"

As long-time readers know, students in my Marijuana Law, Policy & Reform seminar "take over" the second half of my class through presentations on the research topics of their choice. Before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant materials. The first of our presentations taking place this week will focus on professional sports and advertising, and here is how my student has described her topic along with background readings she has provided for her classmates (and the rest of us):

For decades, the NFL and other leagues amongst the Big Four professional sport leagues have embraced alcohol, specifically beer, in league and team sponsorships and advertisements. The NFL even has Bud Light as its “Official Beer of the NFL.” Before that, it was tobacco companies who provided the professional sport leagues with millions of dollars in advertising revenue. While tobacco faded out of the sport scene, alcohol emerged and has since held a strong presence despite policymakers’ concerns about promoting and connecting a harmful substance to athletic achievement, on a national stage reaching children.

The professional sport leagues have shied away from letting players use marijuana for any purpose despite its legality in state marketplaces. This has long been a fight for the leagues’ athletes, who want and should be able to have access to cannabis for pain management. But it then comes as no surprise that the leagues have also prevented cannabis advertising from infiltrating the leagues, their teams, and players.

It is with this background, as well as prior research in players’ use of cannabis (stay tuned for its posting to the DEPC Student Paper Series), that I turned to explore another potential connection between marijuana and professional sports — this time through advertising.

This paper and presentation starts out by discussing the long history of alcohol and tobacco advertising in professional sports. It then turns to current federal and state restrictions on marijuana advertising, looking to the legal limitations that leagues must abide by. To make it easier to digest, this section makes connections to existing alcohol and tobacco advertising laws. Subsequently, this paper looks to the current league policies for marijuana advertising, highlighting the NFL’s approach. Finally, this paper looks to the future of marijuana advertising, it’s implications on the sport industry, and makes recommendations for cannabis advertising in professional sports.

For the most part, there are still a lot of unanswered questions that sport industry professionals will have to deal with. While the law provides some guidelines and can help predict league behavior, there are a lot of opportunities available for both leagues, teams, and athletes in this space. Those options are explored in this paper and presentation.

Background Resources:

Tobacco and Alcohol

• "Sponsorship of Sport by Tobacco and Alcohol Companies: A Review of the Issues"
• "Alcohol Sponsorships And Athlete Endorsements In Sports"

Cannabis Advertising

• "Paid Cannabis Advertising: What’s Allowed, and What’s Not"

Cannabis and Sport Leagues

• "Is Now the Time for Sports Leagues to Embrace Sponsorship from Cannabis Brands?"
• "The Super Bowl won’t be lit: no cannabis ads allowed"

Looks like Brock Ollie will have to generate buzz without a Super Bowl appearance

The intersection of sports and marijuana reform always intrigues me, and Super Bowl week often takes this story to new heights. And this Adweek piece, headlined "Why This Broccoli Is Fed Up With Cannabis Censorship: Weedmaps, whose Super Bowl ad was rejected, uses 'Brock Ollie' to call out lingering stigmas," spotlights the first amusing headline-making development this week. Here are the basics: 

On a typical day for a character named Brock Ollie, he eats breakfast, hails a ride, goes to work and chats with his colleagues. So why does everyone keep bombarding him with clumsy references to getting high?

Because Brock Ollie, with his lanky body and flowery head, is the broccoli emoji come to life, but he’s not just the physical embodiment of a cruciferous superfood.  He’s a visual stand-in for cannabis, often used as shorthand between friends or code between sellers and buyers.

But in 2022, when 37 states have now legalized marijuana for medical use or recreational sales, this kind of subterfuge shouldn’t be necessary anymore, according to Weedmaps. The brand created the walking, talking veggie as the star of his own short film to make a point about censorship in cannabis marketing. And executives chose the timing strategically, dropping the 90-second spot today just ahead of Super Bowl 56, a commercial extravaganza it tried — and failed — to buy time in.

“It’s a message we feel is relevant for a national stage,” Chris Beals, CEO of Weedmaps, told Adweek. “It’s just regrettable and sad to not get the ad on network TV.” The rejection strikes Beals as hypocritical, he said, as high-profile spots for regulated categories like alcohol and sports betting are readily accepted during The Big Game, airing Feb. 13 on NBC, and other televised sports events.

An NBC spokesman said the network does not accept ads “for cannabis or cannabis-related businesses” on any of its platforms....

“The answer was a hard no — they wouldn’t even entertain the conversation,” Juanjo Feijoo, Weedmaps COO and CMO, told Adweek. “We see ourselves as trying to be trailblazers in the industry and making new inroads where others haven’t gone before in cannabis advertising. So it was disappointing.”

I have embedded the video here, as I clearly do not have the same standards as NBC:

"How weed became 'whatever': Leagues are ditching old policies"

As a time with no actual sports, it is nice to have a good excuse to check out ESPN's website where one now finds this very lengthy article sharing the title of this post. The lengthy piece is worth reading in full, and here are excerpts (with my emphasis added):

The marijuana stigma that plagued [Ricky] Williams' NFL career is eroding, if not gone entirely from an enforcement standpoint.  In January, Illinois became the 11th state to legalize recreational marijuana.  Now, of the 123 teams across MLB, the NBA, NHL and NFL, 50 play in states or provinces where recreational marijuana is legal (40.6%). Another 51 teams play in jurisdictions where medical marijuana is legal (41.5%).  That's 82% of teams (101 of 123) that are playing in cities where a player can walk down the street, go into a dispensary, and legally purchase either recreational or medicinal marijuana -- just like they were buying a six pack of beer.

The only states in which any of the four major pro league teams play where there are no broad laws legalizing marijuana are Indiana, Georgia, North Carolina, Tennessee, Texas and Wisconsin.

Sports leagues have adapted.  Last year, we wrote about the NHL's marijuana approach -- predicated on treatment, not punishment -- which at the time was the most progressive in professional sports.  Today?  It's actually the norm.

The NFL ratified a new CBA in March with a drug policy quite similar to the NHL model.  The NFL significantly raised the threshold for positive tests (from 35 nanograms to 150) and eliminated its previous window of testing, which spanned from April to August to the first two weeks of training camp. In other words, if players want to smoke weed in the offseason, they are free to do so.  But most importantly: Players are no longer suspended solely for marijuana.  If a player were to test positive, his case is reviewed by a panel of medical experts who determine if the player needs medical treatment.  "Certainly, we see that society is changing its views, but views only change because key facts become more and more obvious to the people who make policy," NFLPA executive director DeMaurice Smith said.

MLB and its union negotiated a new drug policy in December 2019 following Tyler Skaggs' death.  While the new policy added testing for opioids, fentanyl and cocaine, plus synthetic weed -- with positive tests being referred to a treatment board -- cannabinoids were taken off the league's drugs of abuse list.  That wasn't a huge deal for MLB players, who were only previously tested for marijuana if there was "reasonable cause."  It was, however, monumental for minor leaguers, who were regularly tested and faced steep fines and suspensions -- including a 50-game ban for a first-time offense, 100 games for a second and a lifetime ban for the third strike.  "The way the league had the rules set up, it was ridiculous," said longtime MLBPA agent Joshua Kusnick.  "I can't even imagine how many guys' careers were ruined over marijuana. I personally had clients whose careers were derailed because of it.  If you were a fringy prospect and you were popped for marijuana, you were released because teams didn't want to deal with it.  And if you were released, you couldn't serve your suspension.  So who is going to sign you if you had 50 games to wait?"

The NBA's policy has remained the same -- and is now actually the harshest in North American professional sports.  A first positive test means a player must enter the marijuana program.  The second positive test calls for a $25,000 fine.  The third infraction is a five-game suspension, and five more games are added to each ensuing violation (10 games for a fourth positive test, 15 games for a fifth, etc.).  However, the NBA does not test players during the offseason, and the union and league agreed to not test players during the league's coronavirus hiatus.

Student presentation exploring "Intersectionality of Sports and Marijuana"

As I mentioned in this recent post, students in my Marijuana Law, Policy & Reform seminar are now "taking over" my class by making presentations on research topics of their choice. The COVID-19 crisis means my resilient students are doing their presenting online,  and students are still providing in this space background on their topic and links to some relevant materials before they present.  Another coming presentation will focus on sports (remember those?), and here is how my student has described his topic along with background readings he has provided:

For my paper, I will be discussing the intersectionality of Sports and Marijuana.  I will primarily focus on athletes, both past and present, being used as a vehicle in leading the charge for reforming marijuana in their respective sports, but also in America.  Athletes of past have had influences on a variety of societal issues and inequalities, and I will compare some of the past actions to how athletes of today can affect marijuana.  I will also focus on the new agreements in both the MLB and NFL regarding their stance on marijuana, and what impact that will have on the reformation of sports.  I will conclude my paper by predicting what the future of sports’ stance will have on the reformation of America.  Below are a few links I’ve read over which I will be using in my paper:

"Politics and Sports: A Long and Complicated Relationship"

"If you thought sports were ever separate from politics, think again"

"'All my best games I was medicated': Matt Barnes on his game-day use of marijuana"

"Miami Heat: Sports, Race and the Murder of Trayvon Martin"

Is rooting for Bengals or Browns a sign of insanity or really just a medical marijuana qualifying condition?

I moved to central Ohio from the east coast in 1997.   I had my reasons to start following the Cincinnati Bengals upon first arriving in the Buckeye state (I grew up in Maryland in the 1980s and formed a connection with Boomer Esiason).  And I could not help but also be keen on the Cleveland Browns when the team returned to action in 1999.  But, fast forward 23 years, and I have not seen either of Ohio's professional football teams even manage to win a single playoff game over this very long period.  (Do not feel too bad for me, the OSU Buckeyes have given me plenty of victories to savor.)

Why do I tell this familiar tale of sporting woe in this space.  Well, this amusing Cincinnati Enquirer article, headlined "Bengals, Browns seasons got you down? Medical marijuana proposed as treatment," reports on why it is relevant to the work of marijuana reform in the Buckeye state:

Long-suffering Bengals and Browns fans know the pain of defeat — over and over again. At least one person thinks they should be able to treat that misery with medical marijuana.

A petition to make "Bengals/Browns Fans" an official medical marijuana condition was submitted last month to the State Medical Board of Ohio.

Don't get your hopes up: It probably won't go anywhere. The board requires information from experts who specialize in studying the condition, relevant medical or scientific evidence and letters of support from doctors.

The board could not provide more information Monday about the petition, including who submitted it and their argument for why the board should add the "condition."

Last year, more than 100 petitions for new conditions were submitted. Those were winnowed to five: anxiety, autism spectrum disorder, depression, insomnia and opioid use disorder. All five were rejected by the board.

This time around, the board received 28 petitions. The latest batch includes conditions already approved in Ohio, such as chronic pain and PTSD. Petitions were again submitted for the conditions rejected last year. Repeat petitions must include new "scientific information" to be considered again.

Rob Ryan, who heads pro-cannabis coalition Ohio Patient Network, re-submitted a petition for opioid use disorder but he doesn't expect a different outcome. Ryan, who lives in Blue Ash and sometimes roots for the Bengals, didn't have a strong opinion of the football fan condition idea. "Maybe they should sell marijuana as well as beer at the stadium," Ryan said, chuckling. "It might calm the crowd down."  But he hopes his proposal has a better shot.

Medical board attorneys will review the petitions to determine whether they meet the minimum requirements, such as including letters from supporting physicians.  A medical board committee plans to decide in February which conditions will be reviewed by experts and voted on by the board later this year.

"Going Green in American Professional Sports: Why Marijuana Usage Should Be Allowed and What Policy Changes Should Ensue"

The title of this post is the title of this new paper recently posted to SSRN and authored by Lucian Lungu, a recent graduate The Ohio State University Moritz College of Law.  This paper is the fifteenth paper in an on-going series of student papers supported by the Drug Enforcement and Policy Center.  (The fourteen prior papers in this series are linked below.)    Here is this latest paper's abstract:

In America, professional sports carry significant importance.  This billion-dollar industry is largely controlled by four professional leagues — the National Football League (NFL), Major League Baseball (MLB), National Basketball Association (NBA), and the National Hockey League (NHL) — together known as “the big four.”  Currently, each league has player conduct rules aimed at preventing the use of marijuana.  This paper analyzes the marijuana-related policies of each league and goes on to suggest that these regulations must be revised to allow for marijuana usage.

I argue that the historical misconceptions of marijuana; the outdated, illogical reasons for its initial and continued prohibition in sports; the prevalence and positive public sentiment of marijuana in society today; the ineffectiveness of the leagues’ current policies; and the widespread use of life-threatening, team-prescribed drugs in every league require that these policies be updated.  Subsequently, I discuss the potential medical benefits of marijuana for athletes.  Lastly, based on my analysis, this paper predicts the immediate future of marijuana in the big four and details what I believe should happen in the future.

Prior student papers in this series:

• "The Canna(business) of Higher Education"
• "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
• "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
• "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"
• "An Argument Against Regulating Cannabis Like Alcohol"
• "The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"
• "Race Based Statutes at Play with Cannabis: Cultivating a Process for Weeding Out the Competition"
• "Tribal Cannabis: Balancing Tribal Sovereignty and Cooperative Enforcement"
• "Land of the Free, Home of the (Disgruntled) Brave: The Case for Allowing Veterans Access to Medical Marijuana"
• "Cannabidiol (CBD) in the Therapeutics Industry"
• "The Good, the Bad, and the Ugly: Why IRC § 280E Is Not the Industry Killer It Is Portrayed to Be"
• "Achieving Diversity in the Marijuana Industry: Should States Implement Social Equity into Their Regimes?"
• "Cannabis Legalization: Dealing with the Black Market"
• "Pop Culture's Influence on Recreational Marijuana Use & Legislation: A Case Study on Snoop Dogg"

NFL perhaps ready for new approach to marijuana as it agrees to explore use of drug for pain management

Though he graduated from law school earlier this month,  Lucian Lungu, a helpful student from my marijuana seminar this past semester, made sure that I did not miss this week's interest news emerging from the NFL.  Indeed, Lucian was kind enough to draft this guest post covering the news with some links:

The National Football League (NFL), widely regarded as the strictest on marijuana among the four major, professional sports leagues, has seemingly began to actually move toward, possibly, implementing a new marijuana policy.  On May 20, 2019, the NFL and NFL Players Association released a press release (available here) detailing the formation of two new committees concentrating on pain management  and mental health care.  The pain management news, as explained below, related to its marijuana policy.

The Joint Pain Management Committee will seemingly attempt to provide a solution for the widespread, dangerous, although legal, use of prescription drugs in the NFL by creating new league-wide regulations as well as a Prescription Drug Monitoring Program.  (The problematic use of prescription drugs should be a reason in itself for the NFL to soften its marijuana policy.)  In addition, this Committee will also engage in pain management and alternative therapy research, which includes “look[ing] at marijuana,” according to Allen Sills, NFL Chief Medical Officer.  Additionally, every team will have a Pain Management Specialist who will work with players based on their individualized needs.

If a new marijuana policy gets adopted, it will almost certainly occur during negotiations on the next collective bargaining agreement in 2021.  Nevertheless, this latest development is a great step forward for a league whose commissioner, just three years ago when asked about the NFL's restrictive policy, state that, “we believe it’s the correct policy, for now …”  It looks like the “for now” period has passed, and major changes could be coming to a league in dire need of an adjustment.

 

"Is the NHL the future of marijuana in pro sports?"

The question in the title of this post is the headline of this notable recent ESPN article that a terrific student of mine made sure I did not miss.  Here is how the lengthy piece gets started and an excerpt reviewing the NHL's notable approach to positive drug tests:

Player X is in the NHL.  After home games, he has a routine . Typically, he'll meet a few teammates at a local restaurant for a late dinner.  He likes to order steak after games -- medium rare, with a side salad and mashed potatoes.  Then he'll go home.

Player X sometimes has a hard time unwinding; it was a day of unbounded stimulation.  He woke up and arrived at the rink for a morning skate and meetings, went home to nap, returned to the arena for warm-ups (bright lights and eardrum-blasting music), then exerted his body for 20-something sub-one-minute shifts during which he shoves, sprints, reaches, shoots, gets hit and sometimes bleeds on the ice.  By the time he gets home at night, he needs something to ease the process of getting to bed.  So he'll often reach for his weed pen and take a few hits.  "Just to relax," he says.  "Honestly, it's the easiest and most natural way for me to fall asleep and be ready for the next day."

Because Player X is on a Western Conference team based in a state in which there are broad laws legalizing marijuana, he knows he's not doing anything wrong.  Actually, he's doing what he estimates thousands of others who live in his city do every night as well.

And because he plays in the NHL -- and not, say, the NFL, NBA or MLB -- he knows he won't be punished.

Society's views on marijuana are evolving -- fast.  On Oct. 16, Canada became the largest country in the world to legalize recreational marijuana.  Coupled with results from the midterm elections in the United States, this is the landscape: Of the 31 teams in the NHL, 28 play in states where players have access to legal marijuana, whether it is for medicinal or recreational purposes.  That's the highest percentage (90.3) of any of the major four North American pro leagues, but hardly an anomaly.

This might surprise you: Of the 123 teams across MLB, the NBA, NHL and NFL, 45 play in states or provinces where recreational marijuana is legal (36.6 percent). Another 56 play in jurisdictions where medical marijuana is legal (45.5 percent).  That's a whopping 82 percent of teams (101 of 123) that are playing in areas where their employees can legally purchase either medicinal or recreational marijuana....

Dr. Dave Lewis and Dr. Brian Shaw are the physicians who run the NHL and NHLPA's joint Substance Abuse and Behavioral Health (SABH) Program.  If they determine Player X's test features "abnormally high levels" of THC, they flag it.  The veil of anonymity is then lifted, and the two doctors will contact Player X.  They can recommend he enters the SABH, in which they'll develop an individualized treatment plan for him. Neither the NHL nor NHLPA needs to know that he's in the program.

The league won't punish Player X at all for his test. If he chooses to enter the SABH, Dr. Lewis and Dr. Shaw have the power to levy fines, suspensions or other penalties if conditions are breached.  However, the player is not required to enter the program if he doesn't want to.

"The thing that we're really looking for is if there's a guy that has an issue or a problem and he needs help -- that's what we're trying to capture in that program," says longtime NHL defenseman Mathieu Schneider, now a senior executive at the NHLPA . "I do think it has worked very well.  We have a tremendous amount of faith in the doctors that run the program.  Confidentiality in that program is of the utmost importance."

I have long thought it notable (and not a mere coincidence) that the "whitest" major sports league, the NHL, has the most tolerant approach to marijuana and other drugs.  This ESPN article does not focus on racial issues, but rather is focused on the possibility that other major sports leagues could be attracted to the treatment-oriented marijuana policies in the NHL.  I certainly like that idea, but I am not sure why this kind of public-health approach to marijuana use ought to only benefit elite athletes.  We have used punitive models for dealing with drug use and abuse for so long, the idea that a person would not get punished by his employer for a position drug test seem surprising when it should be the norm.  

Are there any prop bets on when we might see a marijuana ad during a Super Bowl broadcast?

The question in the title of this post is prompted by this USA Today story headlined "CBS rejects Super Bowl ad on benefits of medical marijuana."   (And if you do not know what prop bets are, here is a primer: "Prop bets popular for Super Bowl, but NFL wants them gone.")  Here are excepts from the ad story:

CBS rejected a Super Bowl ad that makes a case for medical marijuana. Acreage Holdings, which is in the cannabis cultivation, processing and dispensing business, said it produced a 60-second ad that shows three people suffering from varying health issues who say their lives were made better by use of medical marijuana.

Acreage said its ad agency sent storyboards for the ad to the network and received a return email that said: “CBS will not be accepting any ads for medical marijuana at this time.”

A CBS spokesperson told USA TODAY Sports that under CBS broadcast standards it does not currently accept cannabis-related advertising....

“We’re not particularly surprised that CBS and/or the NFL rejected the content,” Acreage president George Allen said. “And that is actually less a statement about them and more we think a statement about where we stand right now in this country.”...

“One of the hardest parts about this business is the ambiguity that we operate within,” Allen said. “We do the best we can to navigate a complex fabric of state and federal policy, much of which conflicts.”

Allen said the company had not decided whether to run its 60-second ad or a 30-second version when it learned that CBS would not accept any ads for medical marijuana. CBS is charging an average of $5.2 million for a 30-second ad in this year's game between the Los Angeles Rams and New England Patriots on Feb. 3.

“It’s a public service announcement really more than it is an advertisement,” said Harris Damashek, Acreage’s chief marketing officer. “We’re not marketing any of our products or retail in this spot.”

An unfinished version of the 60-second ad introduces a Colorado boy who suffers from Dravet syndrome; his mother says her son would have dozens to hundreds of seizures a day and medical marijuana saved his life.  A Buffalo man says he was on opioids for 15 years after three back surgeries and that medical marijuana gave him his life back. An Oakland man who lost part of his leg in military service says his pain was unbearable until medical marijuana.

“The time is now,” say words on the screen near the end of the ad.  Then the screen shifts and viewers are asked to call on their representatives in the U.S. House and Senate to advocate for change.  Fine print at the bottom says the testimonials in the ad come from the experiences of the individuals and have not been evaluated by the FDA. The fine print also says marijuana is a Schedule I controlled substance and medical use has not been approved in some states....

Acreage expects to post the ad online at some point so people can see it, even if they can’t see it on the Super Bowl. “It’s not quite ready yet,” Damashek said, “but we anticipate and look forward to getting the message out far and wide.”

I have to admit to being a bit suspect of the idea that the Acreage folks were really planning to spend $10 million to run "a public service announcement" during SuperBowl LIII.   Dare I speculate that they knew full well that their ad would be rejected, but also knew that simply asking and getting rejected would result in beneficial attention.  And I suppose I am now guilty of giving them some of this desired attention (but I am at least asking a fun question along the way).

Speaking of that question, I will answer by foolishly predicting that there will be a marijuana ad during Super Bowl LVI in February 2022.   

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

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.

SBNation takes big look at "Sports in the age of cannabis"

The sports website SBNation has this big new series of articles under the banner "Sports in the age of cannabis." Here is how the site sets up its coverage along with links to more than a half-dozen article of note:

We, as a nation, are changing the way we feel about cannabis.

Gone are the days of Reefer Madness, the hysteria of the War on Drugs.  As more and more states decriminalize and legalize cannabis, we are seeing a new American attitude that views it as much a business opportunity as something to be feared or banned.

These attitudes are making their way into the sporting world as well. Some professional leagues still test for weed, though how eager they are to actually bust athletes is a matter of debate. And athletes are now seriously turning toward cannabis as a pain-management solution — as we learn more about the dangers of opioid abuse, weed appears more and more like a safer option.

While the changing stigmas around cannabis present exciting opportunities for some, it’s not all that simple. We still live in a country where people, too often people of color, are being arrested for selling and using a product that is already making entrepreneurs, in the sporting world and outside of it, tons of money.

We wanted to look at it all, from the mountains of Colorado to the streets of Atlanta, THC and CBD, oils and smoke, and all the rest.  This is sports in the age of cannabis.

ATHLETES ARE LEADING CANNABIS INTO THE MAINSTREAM

WEED AND SPORTS: A TIMELINE

CANNABIS IS FUELING ONE OF THE BEST RUNNERS IN AMERICA

WHICH WEED IS RIGHT FOR ATHLETES?

HOW ATHLETES BEAT WEED TESTS

THE GENDER DOUBLE STANDARD OF WEED IN SNOWBOARDING

WEED STIGMAS ARE CHANGING, BUT NOT FOR PEOPLE OF COLOR

"Can Olympic Athletes Use Cannabis? Officially No, But…"

The title of this post is the headline of this recent Leafy article that struck me as both timely and informative.  Here is how the extended piece starts and ends:

Whether or not you consider cannabis a performance-enhancing substance, it’s still a no-no for Olympic athletes. Being caught can mean suspension or even the loss of a medal. Just ask Canada’s Ross Rebagliati, who in 1998 was stripped of the first-ever Olympic gold for snowboarding after his urine tested positive for THC.

Rebagliati eventually got his medal back after pointing out that cannabis at the time wasn’t actually classified as a banned substance. But every year since, cannabinoids have appeared on the official “Prohibited List” put out annually by the World Anti-Doping Agency (WADA). Sorry, brah.

That’s not to say WADA is especially strict when it comes to cannabis. In fact, the agency’s limits are probably more lenient than your employer’s.

In 2016, we called the Olympic limits on cannabinoids “shockingly reasonable”—and they’ve only gotten more sensible since. Athletes’ urine must contain less than 150 nanograms per milliliter of carboxy-THC, a cannabis metabolite.

By comparison, workplace drug tests commonly used by private employers in the United States set thresholds between about 15 ng/mL and 100 ng/mL. (Rebagliati, the snowboarder, returned a result of 17.8 ng/mL.) Legal-cannabis states often have per se limits for cannabis DUIs, but those are generally based on concentrations of active THC in whole blood rather than WADA’s test for metabolites in urine, making the limits difficult to compare directly.

WADA’s THC limit used to be just 15 ng/mL, but the agency quietly raised it in 2013. The head of the International Olympic Committee’s medical commission said at the time that the change was “a reasonable attempt at dealing with a complicated matter,” adding: “There is a big debate on it.”

How does the limit translate in terms of actual cannabis consumption? That’s hard to say for certain. How long cannabis remains in a person’s system depends consumption habits, genetics, as well as lifestyle factors such as diet and exercise. Athletes, who are generally leaner and more active than average, would likely be able to pass a test sooner than those of us watching from the couch at home....

At the end of the day, Olympic athletes are allowed a fair amount of leeway when it comes to cannabis test results, but they still operate in a world with scant protection for medical use. As more countries move to legalize, perhaps that will change.

"It’s my belief that 70-80% of today’s NBA players use marijuana in some form."

The title of this post is one line in the heart of this extended essay, headlined "9 Reasons to End the War on Marijuana," authored by former NBA player Al Harrington at The Players' Tribute. Here are a few excerpts from the piece:

I was never into marijuana when I was in the league, but I tried everything the doctors could prescribe. After my career, when I was around 32, after seeing what cannabis did for my grandma, I tried out cannabidiol, which is the non-psychoactive form of it — you get the anti-inflammatory effects and the pain relief without the THC, the chemical in marijuana that gets you high. I took the cannabidiol (CBD) as a cream or oil that could be rubbed on topically.

And look, I’m not trying to give out medical advice, so I’ll just say this — for me, cannabis changed my experience with pain. It has worked better, with fewer side effects, than anything I’ve gotten from a doctor. To this day, at 37, after 16 years in the NBA and back surgery and all the miles on my body, I’m still playing ball every week in L.A. Meet me out there. Afternoon runs Tuesday and Thursday. You don’t want none of this!

A few years ago I co-founded a business that produces non-psychoactive cannabis as well as THC-based products. Marijuana changed my life with regard to pain. Now it’s my second calling after basketball. And in a way, it all goes back to that day seven years ago in the garage with my grandma.

Being a minority in the cannabis industry has made me realize how rare it still is. That’s why I’m active in the Minority Cannabis Business Association (MCBA). The MCBA is about improving access and empowerment for minorities in the industry. It basically comes down to this: We’re the communities most hurt by the War on Drugs. Now that marijuana is legal in so many parts of the country, we shouldn’t be left without a seat at the table as the industry takes off.

Alcohol abuse and the NBA. You don’t hear a lot about it, but it’s there. It flies under the radar. This is just the reality: NBA players are affected by anxiety and stress. We’re like any other people with a full-time job that involves a lot of emotional and physical ups and downs.

Many NBA players have a few alcoholic drinks a day. I’ve seen the progression to where they’re having more than a few — just to unwind a little bit or relieve some pain. Pretty soon, it’s easy to be doing that after every game. That takes a serious toll. Pain is just part of sports, though. Athletes are going to seek ways to ease that pain.

I won’t say names, but in my 16 years in the league, I knew of at least 10 or 12 players who had their careers cut short due to alcohol. It either affected them physically or mentally, but one way or another, alcohol shortened their careers. No judgment from me, just facts. We all should be honest. It’s well known how liquor can destroy lives. But we’re still out here demonizing cannabis while alcohol is promoted at sporting events? It all starts with some honesty....

It’s my belief that 70-80% of today’s NBA players use marijuana in some form. I’m not exaggerating. I didn’t do any formal polls or anything like that. I just played in the league for 16 years, and that’s my opinion.

Due to the NBA’s ban on cannabis, most of the guys are doing it in the offseason. But I really think the number is that high.

Here’s why I’m telling you that. These guys are NBA superstars. It’s not the last dude on the bench who’s on his couch getting high. These are global icons — leaders, teammates, parents, citizens. These are world-class athletes, man. They’ve got pain and stress and anxiety and all the things any human has. The NBA has never been more skilled or more fun to watch.

So you tell me: Is cannabis ruining these athletes’ lives? Or are our laws and ideas behind the times?

"How a Steelers Great Lined Up Behind Medical Marijuana"

Especially as I am gearing up for my annual football orgy, which it seems others like to call Thanksgiving weekend, I thought it timely to blog this recent Politico article with the headline that serves as the title of this post.  Here are excerpts:

During his Hall of Fame career for the Pittsburgh Steelers, Jack Ham was renowned as one of the canniest, fastest linebackers ever to play, doling out his share of bruising punishment to opposing ball carriers. These days the man still celebrated as “The Hammer” has a very different relationship with pain: He’s committed to helping people treat it.

Ham is one of a number of Pennsylvania’s pro-athlete aristocracy, including Franco Harris, his former teammate on the Super Bowl-winning teams of the 1970s, who have quickly embraced medical marijuana as a cure for a scourge that has decimated economically depressed parts of the state: opioid addiction. It’s a cause that has special resonance for pro athletes like Ham because they know many players whose chronic injuries made them dependent on painkillers.

When voters in Pennsylvania approved medical marijuana in 2016, Ham was quick to see both the financial promise of bringing a new industry to moribund coal country but also the therapeutic benefits of letting people manage their pain with a substance that some doctors say is less toxic and less addictive than opiate-based painkillers like Oxycodone....

Ham says he does not use medical marijuana himself, but he is not the only former athlete to tout medical marijuana as a solution to addiction.  Former Steelers fullback Franco Harris also signed on to be a spokesman for a company that sought to grow medical marijuana in Braddock, an economically distressed former steel town near Pittsburgh.

“We have a unique opportunity to transform Braddock into a center for state-of-the-art urban agriculture and, at the same time, become a first mover in the United States in researching the efficacy of marijuana in replacing opioids for the long-term management of pain,” Harris said in a press release. Ultimately, that company did not get one of the 12 licenses awarded by the state in the first round. Medical marijuana, which is now legal in 29 states, has many constituencies—cancer patients who appreciate how it tamps down nausea from chemotherapy; libertarians who favor decriminalization of drugs generally, among them. But athletes are one of the more notable groups.   As Harris said in his press release: “The life of a professional football player is one intrinsically tied to long- term pain management.”

Many pro athletes discovered the analgesic benefits of marijuana during their playing careers, which meant that they were violating their league’s drug policies as well as state and federal law. But now, as the trend toward legalization has picked up pace, those same athletes, now retired and free of their contractual obligations are beginning to speak out together.  One of the lobbying groups is called Athletes for Care, an organization of former and current professional athletes who support medical marijuana.  Former Philadelphia Eagles offensive guard Todd Herremans and former Philadelphia Flyers hockey player Riley Cote.  Cote was connected to one of the 177 companies that applied for — but did not receive — a license to grow.

Some of many prior posts about medical marijuana and pro football:

• ESPN highlights NFL players, past and present, eager to use medical marijuana rather than opioids for pain relief
• NFL commissioner reluctant to support allowing players to use "addictive" marijuana
• "Medical Marijuana Could Help the NFL Cure the Illness Menacing Players' Brains, Activists Say"
• Active player urges NFL to allow its employees to use medical marijuana rather than opioids for pain relief
• Should the NFL fund medical marijuana studies?
• "The NFL Should Let Players Use Marijuana"
• "NFL Seeks Right Answer for Marijuana Use" 

NFL commissioner reluctant to support allowing players to use "addictive" marijuana

During an interview this morning on ESPN's "Mike and Mike," NFL Commissioner Roger Goodell said he doesn't yet believe marijuana use has any place in the league. According to this CBSSports.com article:

Although the league has lowered its penalties for testing positive for marijuana -- and not, you know, suspending someone half a season for failing a drug test -- it's still not allowing players to ease physical pain through medically prescribed marijuana.

 

Based on what Roger Goodell said on ESPN Radio's "Mike and Mike" Friday morning, that standard won't be changing any time soon.

 

Goodell said he believes marijuana remains "addictive" in nature and still has negative health consequences.

 

"I think you still have to look at a lot of aspects of marijuana use. Is it something that can be negative to the health of our players? You're ingesting smoke, so that's not usually a positive thing. It does have an addictive nature," Goodell said. "There are a lot of compounds in marijuana that might not be healthy for players long term. It's not as simple as someone just wants to feel better after a game.

 

"We really want to help our players ... but I want to make sure the negative consequences aren't something that we'll be held accountable for years down the road."

 

The NFL isn't going to be that billion-dollar company that just suddenly tells everyone to smoke as much weed as they want. There are all kinds of legal issues at play here, especially with NFL players crossing in and out of various states -- some of which have legalized marijuana, many of which don't -- each week of the season. 

 

Additionally, the NFL is almost always conservative by nature. It is very rarely ahead of the curve when it comes to what society changes for society in terms of being acceptable and appropriate. 

 

And at the end of the day, the league can always blame the doctors. Which Goodell did: he says that medical advisers for both the NFL and NFLPA have not told the league or the union to proceed with making the penalties for marijuana lighter and/or approving medical marijuana. 

Contrary to Goodell, NFL players think they should be allowed to use medical marijuana to treat pain caused by playing the game. Nearly two-thirds of all NFL players believe removing restrictions on marijuana would cut opioid use in the league. According to one study, 51 percent of retired players said they used prescription opioids to treat pain during their playing days, and of those players 71 percent admit to having misused the drugs. 

Related posts:

• ESPN highlights NFL players, past and present, eager to use medical marijuana rather than opioids for pain relief
• Active player urges NFL to allow its employees to use medical marijuana rather than opioids for pain relief
• Should the NFL fund medical marijuana studies?
• "The NFL Should Let Players Use Marijuana"
• "NFL Seeks Right Answer for Marijuana Use" 

Marijuana Policy Within Professional Sports -- Arguments For and Against League Acceptance and Player Use

In my Marijuana Law, Policy & Reform seminar, there is often interest in exploring how professional sports leagues deal with marijuana issues (and the issue changes dynamically nearly every year).  This year is no different, and  I am excited to review the materials and hear the presentation of this year's student addressing the topic that serves as the title of this post.  Here are several links to articles sent to me by the student in preparation for his presentation:

National Football League, Policy And Program On Substances Of Abuse

Article on "MLB, NBA, And NFL’s Policy On Cannabis

Article on "NFLPA: Marijuana policy in NFL is "a CBA issue, not a law-enforcement issue'"

Commentary on "Why the NBA’s Marijuana Policy Is Superior to the NFL’s"

Article on "The NHL's Attitude Toward Marijuana Might Surprise You"

Article on "The Effect Of Weed On Exercise: Is Marijuana A Performance-Enhancing Drug?"

Article on "The Green Team: 18 of the Biggest Cannabis Advocates in Sports"