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New York Law School 5th Annual Sports Law Symposium

By [Monday, January 27th, 2014]

Street Drugs in Sports: The NFL’s Double Standard

By [Thursday, November 21st, 2013]

BY JOSH SEIDMAN ’14

Drug use by professional athletes has been a controversial issue that has long captured the attention of the American public. More recently, the media’s widespread coverage of the use of performance enhancing drugs (PEDs) has led many to question the integrity of professional sports. This transformation has given rise to numerous public policy questions, concerns, and debates. The professional sports leagues have fought vigorously to end player use of PEDs through drug education and testing programs, while Congress has introduced legislation designed to set minimum steroid-testing rules and penalties, such as the Drug Free Sports Act and the Clean Sports Act. Considering the level of scrutiny regarding the use of PEDs, surprisingly little has been discussed about the appropriate level of testing on players for use of recreational drugs. Should professional athletes be subject to the same testing procedures and penalties for both PEDs and recreational “street” drugs? Testing for PEDs is accepted to ensure fair competition, but what justification exists to test athletes for recreational drugs?

NFL drugs useEvery professional sports league has a plan to evaluate and monitor drug usage for its players, including both PEDs and recreational drugs. These systems are developed exclusively through collective bargaining or consent in an individual player contract, and progressively punish drug usage in a step-by-step program, according to the amount of repeat offenses. The National Football League (NFL) set the standard in the U.S. when it began testing for steroid use during the 1987 season, and began issuing suspensions during the 1989 season, nearly two decades ahead of Major League Baseball. According to the NFL, it collects over 14,000 tests every year, more than any other professional sports league. Yet, despite setting the toughest standards for PEDs in American professional sports, with year-round random testing, it is fairly easy to beat the NFL test for recreational drugs as a player.

For players who are not in the substance-abuse program and who don’t agree to unannounced testing in their NFL Player Contract, testing (for cocaine, marijuana, PCP, MDMA, etc.) happens just once a year — between April 20 and August 9 during the preseason. After that test, the player isn’t tested again until the next year. That means, once a player has submitted to his annual test for recreational drugs, he can use them with impunity, as long as he does not engage in behavior that would place him in the substance-abuse program, such as being arrested for possession. The first positive test for a banned recreational substance results in counseling and treatment, not a suspension; only after multiple violations is a player suspended. In contrast, testing for PEDs happens on a random basis throughout the year, with one confirmed positive resulting in a four-game suspension. How foolish does a player need to be – or how addicted to drugs – to fail a test when he knows it is coming? Telegraphing when tests will occur undermines the effectiveness of testing and sends the wrong message to players – that they can use recreational drugs with minimal risk of league punishment.

One need only look at the many examples of the consequences of recreational drug use by athletes to understand why it is imperative to have the same level of scrutiny for both recreational drugs and PEDs. In December 2011, Chicago Bears wide-receiver Sam Hurd plead guilty to felony charges for intent to distribute cocaine, allegedly having sold drugs to dozens of NFL players. At the time of Hurd’s arrest, not a single player had recently failed a recreational test. If the charges brought against Hurd were true, players were using illicit drugs – stimulants, even, and potentially during the season – right under the NFL’s nose. As some of the most celebrated public figures in American culture, NFL players have an implied duty to serve as role models to the community at large. Not unlike learning a player has been gaining an unfair advantage from using, say, steroids, any situation in which players are engaging in the use or sale of illegal substances for recreation – within or outside of the season – would be a public relations nightmare for their team, as well as the NFL. To repair damage caused to the league’s image by players like Sam Hurd and prevent future similar incidents, the NFL needs to impose more stringent standards to deter recreational drug use, as it has with PEDs.

More recently, New England Patriots tight-end, Aaron Hernandez, was arrested on murder and gun charges. Rolling Stone subsequently ran a story claiming that, leading up to the time of his arrest, Hernandez had been using PCP, a dissociative drug that allegedly left him so paranoid, he always carried a gun. How could such flagrant, illegal behavior go unnoticed, especially considering that Hernandez had a previously documented history of substance abuse? Players that enter the NFL with a confirmed history of dependency are placed into the NFL’s substance abuseprogram. While in the program, that player can be randomly tested at any given point throughout the year, regardless of where they are. Hernandez slipped through the cracks because he passed his drug test at the NFL combine, and thus was never placed in the NFL’s substance abuse program. If the NFL had yearlong, random testing for recreational substances, it is possible that Hernandez may have received help before it was too late. Accordingly, the NFL needs to raise the standard for recreational drug testing by proactively monitoring substance abuse in order to protect player health and the safety of others.

With prescription drug abuse on the rise, it is important to note that some recreationally used drugs also have the potential to enhance players’ performance. The use of Adderall – a stimulant best known for treating ADHD – has been a hot button issue in recent years, with 14 players blaming PED suspensions on Adderall or similar substances. Now, the NFL and NFL Players Association (NFLPA) are discussing a proposal that would make a positive test result a substance abuseviolation, as opposed to a violation for PEDs. That means a player would be placed in a treatment program after the first offense, with suspensions and more severe punishment for additional violations. However, some addiction specialists and psychiatrists believe that Adderall can give a player a tangible edge by making them feel calmer, more alert, and providing a heightened sense of concentration within a game that is, so to speak, slowed down. In addition to any competitive edge the drug lends, it comes with significant health risks; as a Schedule II narcotic, it is highly addictive, and an overdose could result in a drug-induced psychosis or cardiac arrest. The NFLPA’s proposal, if accepted, might provide players with greater leeway to use and abuse Adderall, since recreational drugs are only tested for during a limited window of time. In doing so, players may simultaneously put their health at risk, and threaten fair competition. To account for substances that can be used both recreationally as well as to enhance performance, the NFL needs uniform testing procedures for all substances and their use.

As a result, the NFL finds itself in a position wrought with hypocrisy as it takes extreme measures to stop players from using PEDs – so called “cheaters” – but imposes only minimal testing requirements and far less punitive consequences for recreational drug use. One need only compare the numbers: In 2012, thirty-five players tested positively for PEDs, while only nineteen violated the substance abuse policy. Yet the previous and subsequent years boasted perfect examples (Hurd and Hernandez) of the growing problem of recreational drug use within the league. The impetus for this disparity is presumably that the NFL considers steroids a competitive issue, and recreational drugs a medical one. This explains why first-time offenders of the NFL recreational drug policy are only met with counseling and treatment, not suspensions. Regardless, the professed rationales for drug testing programs – fair competition, public confidence in games, the high visibility of players as role models, and the health and safety of athletes and those around them – are extant, and should apply to both the use of both PEDs and recreational street drugs. If the league’s testing programs are to have any merit, the consequences for drug use must be severe and across the board.

In the future, more frequent and less predictable testing may uncover better information on players who use recreational street drugs. The league may also encourage teams to engage in more intense scrutiny – background checks, for example – of players before signing them. If the NFL desires to provide what is considered the gold standard for fair competition in the arena of professional sports, it needs to adopt a harsher, if not zero-tolerance policy against the use of banned substances. Because changes to the NFL drug testing policy must be collectively bargained for, in addition to considering federal and state laws pertaining to illegal substances, the league would undoubtedly face NFLPA opposition to efforts to create a more clean, and thus fair, playing environment. However, the first step is for the NFL to acknowledge the disparity in their drug testing policy, and that recreational drugs are, or have the potential to be, equally harmful to the players, the teams, the league, and, subsequently, the public at large. Ultimately, though, the NFL needs to increase the level of scrutiny into player use of recreational substances. The implementation of identical testing procedures and penalties for both recreational drugs and PEDs would be an initial step in the right direction.