The expansion of medicinal marijuana, as well as the legalization of recreational marijuana on a state level over the last half decade, has brought with it several consequences. One of these consequences is the need for organizations to make tough decisions regarding whether to allow the use of the drug within their organization once it becomes legalized.
Professional sports leagues are being forced to decide whether to allow their players to use marijuana, both for recreational and medicinal purposes. Among these professional sports leagues, the National Basketball Association has been at the forefront of the discussion on marijuana, with several key members in the organization pushing for the eventual allowance of medical marijuana.
David Stern was the commissioner of the National Basketball Association from 1984 to 2014 and is well recognized as having enforced rules strictly and unforgivingly during his time in charge. This led to Stern being a staunch advocate for marijuana remaining on the banned substance list, and the further prosecution of individuals who were caught violating this rule. However, in a 2017 interview with former NBA Forward Al Harrington, Stern stated: “I’m now at the point where, personally, I think it probably should be removed from the banned list. You’ve persuaded me.” Stern further went on to allude to one main reason that he believes that the League should almost be forced to allow the use of the drug, claiming: “I think we have to change the Collective Bargaining Agreement and let you do what’s legal in your state. If marijuana is now in the process of being legalized, I would think you should be allowed to do what is legal in your state. Now I think it’s up to the sports leagues to anticipate where this is going and maybe lead the way.”
As Stern noted, if the NBA is going to make any major changes regarding the use of marijuana, it would have to be done through the league’s collective bargaining agreement. According to the current CBA, league officials can engage in “Reasonable Cause Testing,” meaning that if the League has information that gives it reasonable cause to believe that a player is engaged in the use, possession, or distribution of a “prohibited substance,” it can request a conference and have that player tested. Further, Article 33.6 of the League’s CBA regulates random testing, which would obviously be the source that leads to the most infractions regarding allegations of drug use. If the NBA continues to get more serious about allowing marijuana usage, these articles would have to be reexamined, and this entire section of the CBA could eventually look different, as discussed by David Stern.
As of July of 2018, nine states and Washington, DC have legalized marijuana for recreational use for adults over the age of 21; further medical marijuana is legal in other states, with Oklahoma being the latest to legalize it through a ballot initiative this past June. Despite the continuing federal ban on the use of marijuana, these numbers show that the legalization of marijuana on a state level, both recreationally and medically, is expanding.
Based on this, the most practical avenue to expand the allowance of marijuana in the NBA would be to alter the CBA to allow individuals to use marijuana if they are within states where the drug is already legal. This is as simple as it sounds: individuals who live in states that have legalized marijuana for recreational or medicinal purposes can use the drug legally within the state statute, free of the fear of prosecution by the NBA. Therefore, if the League is looking for a method on how to develop a change in the rules regarding marijuana, it should use the state laws that are already in place and have been developed based on a long history of research and legislation. Under this structure, it would be easy to explain the rules regarding marijuana and takes away the player’s ability to argue that he was not aware of the rules in place. Further, this can help the league push for its players to get involved in the discussion regarding marijuana use. If a player plays on a team that is located in a state which has not legalized marijuana yet, that player still has recourse; become involved in the ever-evolving discussion about marijuana within that state and help to fight for legislation to get the drug legalized in his individual state.
Aside from the health concerns, another fear is that the use of marijuana will send a bad message to children and others who look up to these athletes. As marijuana was illegal for a long time and is just now becoming legal on a state-by-state basis, there is still a strong negative stigma that surrounds its use. So, if athletes publicly acknowledge utilization of marijuana, the image of the League may take a turn that it never intended. However, the response to this is that players are already publicly supporting the use of marijuana. One example of this is Kevin Durant’s involvement in the marijuana industry. Well recognized as one of the premiere players in the National Basketball Association, Kevin Durant is also known for having a very robust business portfolio, including partnerships with: Postmates, Lime Bike, and the Player’s Tribune, as well as being heavily invested in several companies in Silicon Valley. Recently however, Durant has added Dutchie, a marijuana delivery service, to his portfolio. Kevin Durant had the fourth-highest selling jersey during the 2018 basketball season, so his appeal and popularity cannot be denied. Based on this, if players of Kevin Durant’s notoriety can both publicly advocate for and put their money behind marijuana expansion, then clearly the League cannot cite any major concern over how the League’s image will be affected if the drug is allowed in the future. Durant’s involvement with the marijuana industry has not tarnished his image among fans of the game, so this is not a concern that it can rely upon as a deal-breaker.
Another important development to the plight of marijuana in the NBA arose on April 9. The New York City Council approved a bill that prohibits employers in New York City from testing prospective employees for the presence of THC as a condition of employment. This comes as an amendment to Title 8 of the Administrative Code, which had previously laid out the guidelines for employer drug testing. As groundbreaking as this sounds, the bill does contain a number of exceptions, most notably the fact that the bill is restricted to “pre-employment drug testing” of “prospective employees,” and therefore does not seem to have any effect on the drug testing of existing employees. Further, some of the exceptions include broad groups of people, such as: testing for positions in law enforcement, positions involving care of children, medical patients, vulnerable persons, and positions governed by a collective bargaining agreement which addresses pre-employment testing, among others. This last exception is the most important in terms of leagues like the NBA, as they are governed by a CBA that normally directly addresses pre-employment testing. So, as it stands, it does not seem that this bill will have much of an impact on the current status of drug testing in the league, but we will have to wait and see how the bill is handled.
The idea of removing marijuana from the banned substance list in the National Basketball Association is gaining a lot of traction. With newfound support being levied from the League’s own former Commissioner, who admittedly was strictly against the idea of the drug being allowed in his League, it is making many people take notice that there is a real chance that this removal could occur. There is no doubt that the time of marijuana use in a professional sports league is getting closer, and it seems as though the League known for its progressive nature will be at the forefront of the shift.
Photo Credit: Kathy Willens (AP); Royce Young (cbssports)
2016 Union College Graduate; 2019 University at Buffalo School of Law Graduate; Former Captain of the Union College Basketball Team; NBA/NCAA Fanatic (Go Lakers! Go Syracuse Orange!); Interested in the interrelationships between law and sports.