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May Competitive Athletes Use Marijuana?

Posted by on Friday, December 13, 2019 in News, Updates.

The question posed by the title of this post is inspired by news that Major League Baseball (MLB) will no longer test or sanction players for using marijuana. The change is one of several the league and its Players Association recently agreed to make to their 2006 Joint Drug Program (JDP). The joint announcement of the change can be found here. The full JDP (pre-changes) can be found here.

The JDP stipulates that “all Players shall be prohibited from using, possessing, [or] selling . . . any Drug of Abuse, Performance Enhancing Substance, Stimulant, DHEA, Diuretic and/or Masking Agent (collectively referred to as ‘Prohibited Substances’).” JDP, p. 8. Until the recently announced change to the Program, “Natural Cannabinoids (e.g., THC, Hashish and Marijuana)” were considered “Drugs of Abuse.” Id.

Interestingly, although the change to the MLB’s policy is notable, I think it’s important to note that the MLB’s policy toward all Drugs of Abuse (and especially marijuana) was already quite forgiving even before the change. For one thing, the JDP allows for testing of Drugs of Abuse only when there is “reasonable cause to believe that a Player has, in the previous 12- month period, engaged in the use, possession, sale or distribution of a Drug of Abuse.” Id. at p. 18. By contrast, players can be regularly and randomly tested (without cause) for other Prohibited Substances, like Performance Enhancing Drugs.

Furthermore, even if a player tests positive for a Drug of Abuse – again, until now, including marijuana – the JDP simply calls for the player to be evaluated for a Treatment Program. Id. at p. 26. And if the player is required to undergo a Treatment Program that causes him to miss any games or practices, he gets to keep his full salary (at least for the first 30 days). Id. at p. 28.

Lastly, even though a player can be suspended for violating a Treatment Program for
OTHER Drugs of Abuse (say, cocaine), the JDP did not allow for suspension for violating marijuana Treatment Programs. Id. at p. 26. Instead, the JDP specified that such a player “shall be subject to fines, which shall be progressive and which shall not exceed $35,000 for any particular violation.” Id. A player would face more severe disciplined — meted out by the Commissioner — only if he demonstrated “flagrant disregard for his [marijuana] Treatment Program.” Id. By comparison, violating Treatment Programs for other Drugs of Abuse results in more severe sanctions, including a 25 game suspension for the first violation and a minimum 1 year suspension for the fourth sanction. Id. at pp. 39-40.

Still, the changes wrought by the latest agreement help reconcile MLB drug policy with increasingly popular state marijuana reforms and the federal legalization of hemp. According to this ABA piece, for example, 87 professional sports teams are now located in states that authorize some use of marijuana. However, it should be noted that the MLB’s new policy does not really care about the content of state (or even federal) law: professional baseball players can no longer be tested or penalized by the league for using marijuana or hemp derived CBD products, regardless of whether such use is permitted by law. (I suppose they could be still be disciplined for misbehavior related to the use of marijuana, in the same way that they can be disciplined for misbehavior related to the use of alcohol.)

The book briefly discusses the special issues faced by professional athletes on pages 664-665 n.3. In particular, the book notes how collective bargaining agreements between athletes and their sporting leagues might bar the athletes from using marijuana, even when such use is allowed by state law (and even when state law otherwise bars imposition of employment sanctions for marijuana use).

For interested readers, here are a few recent articles concerning the regulation of marijuana use by athletes:

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