Can the NHL Solve the NFL’s Marijuana Problem?

 

89% of all NFL players smoke weed—at least according to former NFL player Martellus Bennett. The recently retired tight end sparked headlines when he made this high—and pretty specific—estimate on a recent Bleacher Report podcast.  Since then, more former players have spoken to the site about marijuana use in the league. You can listen to their roundtable discussion here.

Accuracy of Bennett’s estimate aside, his comments reflect a growing disconnect between league rules and society’s shifting views on marijuana—especially medical marijuana.

In Bennett’s opinion, players are not just lighting up for recreational reasons.  He attributes use to the toll an NFL season takes on a player’s body, saying: [t]here are times of the year where your body just hurts so bad, you don’t want to be popping pills all the time. There are anti-inflammatory drugs you take [for] so long that they start to eat at your liver, kidneys, and things like that. A human made [those drugs]. God made weed.”

Bennett is not alone in his concerns about standard pain management.  In 2015, more than 1,800 former players sued the NFL, alleging team doctors and trainers ignored player safety and negligently provided narcotics and anti-inflammatory painkillers to keep players in the game.  This, combined with an increasing body of research on the possible benefits of marijuana for “football injuries,” could lead a player to consider whether marijuana would improve quality of life. Heck, even the League’s own chief medical officer described researching marijuana’s use in chronic and acute pain management as “really important” for the league.

Currently, medical marijuana is legal in twenty-nine states plus the District of Columbia; recreational marijuana is legal in nine states and D.C. Twenty-three NFL teams play in a state where some form of use is legal.  But, none of this really matters to the NFL; the NFL is a private association and can make its own rules—and, as it stands, the NFL maintains the strictest marijuana policy of the big-four professional sports leagues.

The problem is the NFL does not just ban performance enhancing drugs; it wants to weed out substance abuse as well.  Article 39, section 7, of the CBA states, “[t]he parties agree that substance abuse and the use of anabolic steroids are unacceptable within the NFL” (emphasis added).  The League’s first drug policy—enacted in 1971 by then-Commissioner Pete Rozelle—was designed to “educate players about the dangers of substance abuse.” [1]

The NFL’s current position on substance abuse is fleshed out in a 40-page Policy and Program on Substances of Abuse (read it here).  Under that policy, the standard for a positive test is 35 nanograms per milliliter of blood or urine.  This is more than double what it was in 2013 (the limit was 15 ng/ml before the policy was negotiated), but it is still lower than Major League Baseball’s limit of 50 ng/ml and seems downright puritanical when compared to the Olympic limit of 150 ng/ml.[2]

The sharpest criticism of the League’s marijuana stance is reserved for its punitive nature.  Under the policy, all players under contract are subject to random preseason drug testing during a window opening April 20th and ending August 9th.  If a player tests positive for marijuana once, he is referred to a substance-abuse program and subject to increased random testing.  Second and third violations result in fines equivalent to two and four game checks, respectively.  Suspensions begin with a fourth violation and increase exponentially.  Four violations results in a four-game suspension; five, a ten-game suspension; and six earns a full-season ban.

So how does the NHL factor into this? Like football, hockey is a contact sport that takes a toll on a player’s body and brain.  Unlike the NFL, the NHL takes a more laissez-faire approach with its recreational drug policy.  Article 47 of the NHL CBA establishes the Performance Enhancing Substances Program and, as the name suggests, the program’s primary concern is curtailing use of performance enhancing drugs.  Recreational drugs or “drugs of abuse” are tested for, but the results are anonymously reported to the Program Committee on a survey basis.  According to TSN, the 2016-2017 season was the first time the NHL tested all player samples for recreational drugs including cocaine and marijuana.

A key difference between the NFL and the NHL is that a positive sample in the NHL does not automatically result in action taken against a player.  Under the NHL policy, results for “drugs of abuse” are submitted to the drug program committee on an anonymous survey basis.  The identity of a player testing positive will only be revealed if the positive result “shows a dangerously high level” that “causes concern for the health or safety of the [p]layer or others[.]” If the player cannot provide an alternate medical explanation for the high result, he will be routed to the NHL/NHLPA Program for Substance Abuse and Behavioral Health for further evaluation and treatment.  Though, former enforcer Riley Cote told sportsnet.ca this program is generally reserved for harder drugs like ecstasy and cocaine, testing positive for marijuana will, typically, just result in a call.  Cote, like Bennett, also spoke out about the prevalence of marijuana use among his peers; in the same 2017 interview he claimed about half the guys he played with and against used the drug.  Cote personally admitted to using marijuana to help with anxiety and pain.

There is still a lot that needs to be researched in terms of marijuana use in a professional sports context, however, it could benefit the NFL to think a little more like the NHL and enact a policy that allows for monitoring and includes avenues for intervention but eliminates some of the headline-grabbing punishment.

From a practical standpoint, any change in the NFL’s drug policy is likely a couple years away.  Beyond being a health issue, the League’s drug policy is a labor issue and must be collectively bargained. The current CBA does not expire until 2020.  There appears to be support on both sides of the table for reducing the impact of a positive marijuana test.  Last year, the NFLPA seemed to express interest in asking for a more lenient policy and Dallas Cowboys owner Jerry Jones has spoken positively about reevaluating the policy.  Changing, or not changing, the policy could be powerful leverage for both sides and it will be interesting to see how—or if—the policy is used during negotiations.

[1] https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1052&context=sportslaw

[2] http://www.espn.com/nfl/story/_/id/19076621/where-nfl-players-dallas-cowboys-owner-jerry-jones-differ-marijuana-pot-2017-offseason

 

Photo Credit: Paul Nisely/SN Illustration/sportingnews.com

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