Loyola University Chicago School of Law, JD 2025
As marijuana use has been legalized in some capacity in a majority of states, there remains a notable population who is still banned from its use: student athletes. However, recent recommendations to the National Collegiate Athletic Association (NCAA) means that change could be on the horizon for collegiate athletes. Earlier this summer, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (CSMAS) signaled its support for eliminating cannabis from the banned substances list and drug-testing protocols for student athletes. On September 22, 2023 the committee officially recommended that all three NCAA divisional bodies adopt legislation to remove cannabinoids from the banned drug classes. The recommendation was based upon the conclusion found at the Summit on Cannabinoids in College Athletics hosted by the NCAA last December. They concluded that cannabinoids are not considered to be performance-enhancing, the current policy was found to be ineffective at prohibiting use, and testing was better implemented by individual schools.
The NCAA began drug testing in 1986, and athletes are aware they could be subject to a random urine test at any point during the school year, and during certain postseason and championship events for any of the listed banned substances. The current policy regarding marijuana use was altered by the NCAA in February of 2022 to increase the THC threshold required to trigger a positive test from 35 to 150 nanograms per milliliter, matching the policy of the World Anti-Doping Agency. Along with the increased threshold, the penalty structure involves no loss of eligibility for student athletes as long as they complete a management plan and education course after each positive test. A student athlete only loses a percentage of regular-season eligibility if they are not compliant with the education and management plan. This previous change shows the NCAA’s willingness to adapt, and it is time that they adapt with the current trends.
What’s stopping the change from being implemented?
One obstacle to this major change is that each of the divisional governance bodies, Division I, Division II, and Division III, would all have to introduce and adopt the legislation. However, there has not been any indication that the divisional governance bodies are against such a change, as they usually adhere to the recommendations of CSMAS.
The main obstacle remains the state and federal laws surrounding marijuana use. While some states have legalized marijuana use, others have only allowed it for medical purposes, and still 12 states remain that completely ban the use of marijuana. Additionally, cannabis is still illegal under the Controlled Substances Act (CSA). However, each school has their own drug-testing policy for student athletes and the proposed policy only removes cannabis from the NCAA banned substances, so schools could still have penalties for athletes in states where the use is still illegal. There is also still the Drug-Free Schools and Communities Act from 1989 that prevents students on a campus that receives federal funding from possessing or using cannabis. As most schools receive federal funding, this further complicates the issue. On the other hand, the schools could still regulate the usage themselves, and student athletes living off-campus would not be affected by the act, regardless of if the school receives funding.
How is the proposed policy beneficial?
As the Summit on Cannabinoids in College Athletics found, cannabis is not a performance-enhancing drug, and the NCAA’s current policy is ineffective at preventing use. Currently, the NCAA is wasting precious resources to test athletes for a substance that does not give them a competitive edge over those who chose not to partake, and one that is legal in many states. The goal of the NCAA banned substance list is to ensure fair competition, not to prevent drug use, legal or otherwise. While the NCAA has an interest in keeping athletes safe and healthy, this interest should be reflected in a policy that treats marijuana use the same as alcohol. Both substances are not performance- enhancing and are illegal for a number of athletes, but only one involves the potential to lose eligibility.
The proposal by CSMAS encourages an education-based approach from the NCAA. NCAA athletes are already required to receive drug education each year, which includes educating athletes on recreational use of alcohol, and the CSMAS proposal encourages extending this information to cannabis use. Instead of discussing cannabis as a banned substance, the NCAA could discuss safe practices and provide resources for misuse. This education would satisfy the NCAA’s need to keep athletes safe and healthy, but would not prevent student athletes of permitted consumption age in states where cannabis is legal from partaking if they choose. At least if the NCAA chooses to adopt the policy proposed by CSMAS, athletes will be making informed and hopefully safer decisions regarding cannabis use.