• Villanova Sports Law Blog

The Herbal Athlete (Part I): History, Race, and America's War on Drugs

By Arun Thottakara:

America’s relationship between drug use and race is exceptionally convoluted, inherently toxic, and yes, driven by this country’s lingering history of racism. In 1937, the United States Congress passed the Marihuana Tax Act which established the United States’ prohibition of the drug. [2] The act was passed under the facade of stricter drug criminalization; however, the man spearheading the operation, the Federal Bureau of Narcotics commissioner Harry Aslinger, was quoted indicating an ulterior motive: “There are 100,000 total marijuana smokers in the U.S., and most are negroes, Hispanics, Filipinos, and entertainers. Their satanic music, jazz and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with negroes, entertainers, and many others.” [3]


The discourse surrounding marijuana during this time was predicated on deliberately deploying falsities to invoke racist imagery throughout America. By advertising marijuana as a violence-inducing drug connected to people of color, Aslinger infamously crafted an effective propaganda scheme which sought to diminish the place of Hispanic immigrants and African Americans in society. The Marihuana Tax Act was ultimately repealed and cannabis was instead made a Schedule I drug by the Food and Drug Commission. [4] Nevertheless, the ideas perpetuated by Harry Aslinger would continue to shape our society for decades to come.


Over 30 years later in 1968, the Nixon administration unleashed a full-fledged War on Drugs, deceiving the American people with the idea that stricter enforcement would create a safer society. Once again, politicians used the guise of drug enforcement to exploit racially motivated desires. [4] Nixon’s former Domestic Policy Chief, John Ehrlichman, openly stated the Nixon administration’s genuine intent:


“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people…. We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt their communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.”[4]


The ramifications of connecting people of color, particularly African Americans, to drug use has manifested itself into disproportionately high incarceration rates in modern America. As written, the laws are race neutral, but as enforced, they are divisive. According to the American Civil Liberties Union, a black person in America is almost four times as likely to be arrested for marijuana possession as a white person is, despite nearly identical usage rates. In major cities like New York, African-Americans are up to ten times more likely to be charged with possession. [5] Almost unavoidably, the inconsistencies in punishment for marijuana use filter into the world of sports as well.


The NBA (75% black) has four random drug tests per year, with a testing limit of 15 ng/ml of THC. After the first offense, a player enters a substance abuse program, the second offense warrants a $25,000 fine, and every ensuing failed test is an added five-game suspension with loss of salary. The NFL (70% black) has one random drug test, issued between April and August, with a testing limit of 35ng/ml of THC. After the first offense, the player enters a mandatory rehabilitation program, is subject to further testing, and the length of suspension without pay for every subsequent failure is under the discretion of the league. These suspensions can be up to a full year with no salary. The MLB (8% black) only tests on the basis of reasonable cause rather than random testing. If there is reasonable cause, members of the Health Policy Advisory Committee are called, evidence is presented, and then a majority vote has to pass. Only then can a player be tested. The NHL (3% black) does randomly test for drugs; however, marijuana is not on their list of banned substances and there is no disciplinary action for NHL players testing positive for marijuana. [6]


The enforcement of marijuana use in sports seem to parallel its enforcement in our criminal justice system. It is clear that depending on the leagues’ racial demographics, the opportunity to be punished for marijuana use changes drastically. The higher the percentage of African Americans in a professional American sports league, the more likely you are to be tested for marijuana, the more likely you are to be punished for marijuana, and the harsher those punishments will be.


Whether inadvertent or focused, the effects of systemic racism run deep into every aspect of American society. The nature of systemic racism is that it often plays out in a way that cannot be readily seen, but only becomes visible after analysis of historical patterns and modern fact. We tend to view sports not as a subsection of American society, but as a separate entity operating under its own status quo. It is a beautiful concept to see sports as an arena immune from societal downfalls, an area where regardless of differences in race, class, or political view, two individuals can come together and root for the same team. While this remains a quintessential aspect of sports, it is ignorant to think that sports are impervious from the racism that shaped this country’s being.


I am not implying any of these leagues are overtly racist, nor am I suggesting that this pattern of racial demographics and ensuing punishment are purposeful. However, the system as it exists throughout American sports today seems split on a categorical racial divide; majority white leagues do not hold their players to the same accountability as majority black leagues. As we move forward, marijuana legalization will continue to expand throughout the country, and thus, there will be a time in the near future when professional sports leagues must reevaluate their marijuana policy. As always, most reforms of this nature are complicated, but in a broader sense, there is nothing complicated about the audacity of equality. Our past has begotten transgressions beyond what we can change in a single lifetime, but a genuine, material revolution is possible in the small world of sports. The opportunity for change is upon us, and the potential to separate the sports future from America’s past looms ahead.


In Part II of this discussion, I will look at what legal barriers could impede upcoming change, the benefits and downfalls of introducing marijuana into sports, and question if sports actually have the power to do some type of justice for marijuana’s racially divisive history.


[1] Heck, Jordan, “Ronnie Brown: Ricky Williams’ weed problems were ‘over exaggerated’.” Sportingnews.com, Sporting News, 1 June 2016, http://www.sportingnews.com/us/nfl/news/ricky-williams-weed-problems-gym-ronnie-brown-miami-dolphins/3y9e4zy6pa4s1xvqwdopzp3zi

[2] Pagano, Alyssa, “The Racist Origins of Marijuana Prohibition.” Businessinsider.com, Business Insider, 2 March 2018, https://www.businessinsider.com/racist-origins-marijuana-prohibition-legalization-2018-2

[3] Jenison, David, “Was Harry Anslinger a Racist?” prohbtd.com, PROHBTD, n.d., https://prohbtd.com/was-harry-anslinger-a-racist

[4] Chandrasekhar, Jay, “The Racist Origins of Marijuana Laws Still Affect How They are Enforced Today”, nbcnews.com, NBC News, 28 April 2018, https://www.nbcnews.com/think/opinion/racist-origins-marijuana-laws-still-affect-how-they-are-enforced-ncna869631

[5] Matthews, Dylan, “The Black/White Marijuana Arrest Gap, in Nine Charts.” www.washingtonpost.com, The Washington Post, 4 June 2013 https://www.washingtonpost.com/news/wonk/wp/2013/06/04/the-blackwhite-marijuana-arrest-gap-in-nine-charts/?utm_term=.09f2460e61d4

[6] Bures, Brendan, “How Each of America’s Sports Leagues Test for Marijuana.” Thefrenchtoast.com, The French Toast, 14 September 2017, https://thefreshtoast.com/cannabis/how-americas-different-sports-leagues-test-for-marijuana/