By Sydney Jenkins
Seyfarth Synopsis: College athletes around the country may soon be in for an unexpected change in drug testing requirements. The NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (CSMAS) recently showed support for removing cannabis from the organization’s banned drug list and testing protocols. The committee will discuss the decision with its members throughout the summer and final action will be decided on in the fall. Action items the committee will focus on include considering whether NCAA drug testing should only be limited to performance-enhancing substances, and seeking approval from the NCAA Board of Governors to stop testing for cannabis at championship events while the ultimate legislative decision is pending. To finalize the decision of cannabis being removed from the NCAA’s list of banned drugs, all three of its divisional governance bodies have to introduce and adopt legislation.
Why is the NCAA considering such a historic change in drug testing now? Last December, the organization hosted a Summit on Cannabinoids in College Athletics with over 60 attendees that came to the conclusion that “cannabis is not a performance-enhancing drug and that a harm reduction approach to cannabis is best implemented at the school level.” Expanding on this ideology, CSMAS also encouraged support of creating a comprehensive communication and education campaign that informs members about cannabis.
Of course, even if this idealized policy change is approved by the NCAA, federal and state regulations still form significant barriers to athlete usage. Cannabis is presently considered a Schedule I substance under the Controlled Substances Act (CSA) and is illegal under federal law. Even possession of a small amount of marijuana is a violation of the CSA. Yet, recent events show that the federal government may be slowly moving away from prosecution of this charge. President Biden’s 2022 pardoning of all U.S. citizens federally convicted of simple possession of marijuana hints at this notion. Nevertheless, until Congress or a Presidential administration alters marijuana’s status as a Schedule I substance, it will continue to be federally illegal.
On the bright side, many state legislatures have legalized cannabis at the state level. As of June 2023, 38 states, three territories and the District of Columbia allow the medical use of cannabis products for adults, and 23 states plus the District of Columbia allow for recreational adult use. Furthermore, according to a 2022 Pew Research survey, the “majority of U.S. adults (88%) say either that marijuana should be legal for medical and recreational use by adults (59%) or that it should be legal for medical use only (30%).” Looking at these statistics, which continue to change rapidly in favor of looser restrictions on marijuana usage, it seems likely that the NCAA will move in the same direction as many state legislatures and citizens.
Still, even after hurdling past the regulations of states that allow the use of marijuana, college athletes are redirected to the Drug-Free Schools and Communities Act. This 1989 statute provides that universities that receive federal funding and/or students that receive federal financial aid are barred from using or possessing cannabis on campus. Failure to comply with this law may put students and universities at risk of losing funding. To put this into perspective, almost every college in the United States receives federal funds to support its development and as of June, the federal government has spent $83.9 billion on higher education this year alone. So, this challenge poses a major threat to the NCAA’s proposed plans.
Conversely, some schools have found ways to get around the federal law. For example, Miami University in Ohio allows students who are legally permitted to use medical marijuana to apply to live off campus and use marijuana as they are legally permitted to by the state. If the NCAA changes its drug testing protocol, other schools may look to get around federal legislation by following Miami’s lead and allow student athletes who intend to use marijuana to live off campus. Alternatively, college administrations participating in the NCAA may join the efforts to lobby Congress to alter cannabis’ Schedule I status.
There are a plethora of individuals who will be impacted if the NCAA follows through with the modification of its drug testing protocol. Student athletes, athletic directors, public relations employees, marketing teams, and cannabis companies looking to expand their market will all be effected by the organization’s potential change. While the legality of the NCAA’s proposed adaptation will prove to be a complex balance between ever-changing federal, state, and higher education cannabis law, it is critical that all affected groups and individuals stay informed on relevant laws and regulations.