• Villanova Sports Law Blog

The Herbal Athlete (Part II): I Can Smell a Blatant Contradiction, Man, Listen

By Arun Thottakara:


In Part I of his two-part series on marijuana use in sports, Arun Thottakara gives a brief history of the racist history behind marijuana bans in the United States, details the drug policies implemented by each of the four major leagues, and analyzed the parallels between these policies and the nation at-large. Part I can be read here.


As explored in Part I, well-defined parallels exist between the racial demographics of professional American sports leagues and how athletes are punished and held accountable for marijuana use. However, these parallels need to be viewed as just that; it is not an ultimatum of factual reality concluding that racism is established in sports. Rather, it’s an observation predicated on history and modern fact, producing results that cannot be denied, but simultaneously cannot be judged without further intrigue. This parallel is undoubtedly real, but to ignore other factors pertaining to the racial inconsistences for marijuana punishment in sports would be futile in the attempt to reach a full understanding of marijuana’s occupation in sports.


The NHL is made up of 46% Canadian players and the league has seven teams in a country where marijuana laws have traditionally been much more lenient than the United States. [1] This legislative lenience towards marijuana use stems back to 2001 when Health Canada defined who could be eligible to have access to medical cannabis and protected physicians from prosecution for prescribing cannabis. [2] At that time, considerations for any kind of marijuana legalization were still well outside the mainstream of U.S. politics. Given the national legalization of marijuana in Canada, it initially seems problematic to correlate a league with deep Canadian ties to leagues fully based out of the U.S. However, the fact of the matter is that the laws which govern our society are generally isolated from sports. Marijuana policy in athletics is primarily a Collective Bargaining Agreement (CBA) issue rather than a legal one.


Federal or state policy for marijuana use has no real influence in the direction sports leagues maneuver through their individual marijuana policy. As the NFL Players Association’s Assistant Executive Director for External Affairs says, “We are talking about how players get treatment under our jointly agreed upon drug policies, [this is] not any advocacy for federal v. state statutes.” [3] A realistic evaluation of the current marijuana climate in the United States leads one to believe that U.S. legalization will not happen anytime soon. Rescheduling the drug from Schedule I (no recognizable medical benefits) to Schedule II (recognized medical benefits) would open up the entire cannabis industry to strict FDA oversight which would both restrict the flow of legal marijuana to the public and be an implausibly costly venture to the federal government. [4] Additionally, U.S. Tax code 280E restricts businesses selling federally illegal substances from taking corporate tax deductions. As a result, the effective tax rate for marijuana retailers in legalized states is at 70%, an economic benefit the federal government might not want to give up. [4]


It is clear that the implications of marijuana use in American sports leagues falls directly on the relationship between the Players Association and the League. Thus, the resulting CBA is the primary source of “law” that controls the punishment for marijuana use, not the surrounding state or national laws regarding marijuana.


So, what is stopping the NFL and NBA from turning a blind eye to national marijuana policy and disbanding random drug tests like the MLB and NHL? According to NBA spokesman Mike Bass, “[The NBA is] interested in better understanding the safety and efficacy of medical marijuana, our position remains unchanged regarding the use by current NBA players of marijuana for recreational purposes.” [5] The contentions of both the NFL and NBA is predicated on the issue of marijuana used for pain relief; though, the standard of pumping athletes full of Vicodin and Percocet is outdated and dangerous. The NFL’s opiate addiction problem is well documented with athletes like Brett Favre, Mike James, Jake Plumber, Kyle Turley, and many more entering rehabilitation or admitting misuse of dangerous prescription pain killers.[6] Varying reliability of studies linking marijuana and pain relief is stopping these two leagues from lightening their substance abuse policy surrounding marijuana even with consistent testimony from former players saying that marijuana helped them deal with the pain that comes with the physicality of the sport. [6] Granted, marijuana is not the answer for everyone dealing with pain. However, criminalizing and punishing its use is inexcusable when the dangers of opioid use have been so well documented. The appropriateness of marijuana use in sports is clear, yet the NBA and NFL continue punish the use of a substance that can benefit its athletes and restrict the outlet of pain relief to dangerous prescription opioids.


Given all of the substantive information regarding marijuana use in sports, it is still impossible to ignore the history of racism surrounding marijuana law. The bottom line remains: majority white leagues do not hold their athletes to the same accountability as majority black leagues. The issue of drugs in sports is unduly complicated. You cannot mention marijuana without discussing its history, and you cannot mention marijuana’s use as a painkiller without discussing the current opioid epidemic in sports. You cannot mention either without discussing race.


Right now, the bottom line falls on the sins of our past; but, previous transgressions can be remanded by future action. In American sports, there is an opportunity to elicit equality from a place of racial disparity. There is an opportunity to buy into the due notion of fairness and provoke resonating, positive change. Entering the next CBA negotiation, professional sports leagues need to take a look at the past, look at the current CBAs in other American sports, look at the athletes the protections they need, take into account the racial disparities that have trickled into sports, and accordingly make changes that diverge the future of sports from America’s chauvinistic past.


[1] Gaines, Cork, “Canadians Make Up Less Than 50% of NHL Players for the First Time.” Businessinsider.com, Business Insider, 23 October 2015, https://www.businessinsider.com/nhl-player-nationalities-2015-10

[2] Rough, Lisa, “The History of Cannabis in Canada.” Leafly.com, Leafly, 6 July 2017, https://www.leafly.com/news/canada/history-cannabis-canada

[3] Jhabvala, Nicki, “NFLPA: Marijuana Policy in NFL is “a CBA issue, not a law-enforcement issue.” Denverpost.com, The Denver Post, 24 February 2017, https://www.denverpost.com/2017/02/24/nflpa-marijuana-policy/ [4] Williams, Sean, “7 Reasons Marijuana Won’t Be Legalized in the US.” Fool.com, The Motley Fool, 17 June 2018, https://www.fool.com/investing/2018/06/17/7-reasons-marijuana-wont-be-legalized-in-the-us.aspx

[5] “David Stern Calls For Changes of NBA Marijuana Rules.” Usatoday.com USA Today, 26 October 2017 https://www.usatoday.com/story/sports/nba/2017/10/25/stern-calls-for-nba-changes-of-marijuana-rules/107018096/

[6] Jhabvala, Nicki, “Why Jake Plummer and Others are Pushing for Research on CBD’s Bnefits to NFL Players.” Denverpost.com, The Denver Post, 22 April 2016, http://extras.denverpost.com/game-of-pain/index.html