Posted: Thu January 23, 2014 12:25PM; Updated: Fri January 24, 2014 1:34PM
Michael McCann
Michael McCann>SPORTS LAW

How should the NFL deal with increased legalization of marijuana?

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billboard
This billboard at the season opener urged the NFL to loosen its policy on marijuana use by players.
RICK WILKING/Reuters
NFL teams that play in states where marijuana is legal for medicinal purposes
Arizona Cardinals | Chicago Bears |Denver Broncos
Detroit Lions | New England Patriots | New York Giants
New York Jets | Oakland Raiders | San Diego Chargers
San Francisco 49ers | Seattle Seahawks
Teams in states with pending legislation: Buffalo Bills, Cincinnati Bengals, Cleveland Browns, Minnesota Vikings, Philadelphia Eagles, Pittsburgh Steelers.

Eleven of the NFL's 32 franchises play home games in states that have legalized marijuana for at least medical purposes, including this year's Super Bowl finalists, the Seattle Seahawks and Denver Broncos. And if pending medical marijuana legislation becomes law in Minnesota, New York, Ohio and Pennsylvania, the number of NFL franchises based in marijuana-legal states would jump from 11 to 17 -- more than half the league. For those who remember the War on Drugs campaign and the "This is Your Brain on Drugs" public service announcement, times have indeed changed.

New studies that identify marijuana's health benefits, combined with the moving testimony of marijuana users to efficiently treat their pain, have transformed attitudes about the drug and favorably distinguished it from other "criminal" substances. Seizing the trend, the Marijuana Policy Project paid for a billboard that was visible during the NFL's season opener in Denver, calling on the NFL to stop punishing players who test positive for marijuana. The league is unlikely to heed this call anytime soon, but advocates for legalizing marijuana took note this week when commissioner Roger Goodell said, "if medical experts ever say medical marijuana would help with concussions then [he] would consider allowing it." And the previous week, he answered a medicinal marijuana question by saying, "I don't know what's going to develop as far as the next opportunity for medicine to evolve and to help either deal with pain or help deal with injuries, but we will continue to support the evolution of medicine."

The evolution of legalization is to the point that 20 states and the District of Columbia have approved marijuana for the treatment of medical conditions or for broader use. Within a few years, this will be true in the majority of states. Legalization, of course, has no legal effect on leagues and players' associations prohibiting their athletes from using the drug. But it does force employers to rethink the logic of banning marijuana, and there are an increasing number of people who feel the NFL could be a major player in that process.

NFL Prohibition on Marijuana

Marijuana's gradual legalization has profound implications for the NFL and its players, many of whom rely on powerful and addictive painkillers. Advocates for the drug maintain that it can help players safely cope with pain and may even help them recover from concussions.

Under current rules, NFL players cannot use marijuana. The drug is expressly prohibited by the drug and substance abuse policy agreed to by the NFL and the NFLPA. This prohibition is not unique as the NBA and MLB and their respective players' associations also ban marijuana. The prohibition is also not surprising because federal law criminalizes marijuana (cannabis) as a Schedule 1 prohibited substance under the Controlled Substances Act.

The NFL, however, is different from those other two leagues in treating a positive test result for marijuana the same as a positive result for drugs more conventionally regarded as dangerous and that carry much harsher penalties under criminal law. An NFL player who tests positive for marijuana is subject to the same penalty scheme as if he tested positive for cocaine or heroin. While a player who tests positive once for these drugs generally receives intervention, with no accompanying fine or suspension, a second-time positive test can lead to a dramatically different punishment: up to a four-game unpaid suspension -- a quarter of a season -- or longer if he's a repeat offender. Retired running back Ricky Williams received several suspensions in his NFL career for marijuana-related offenses. In 2011, Broncos linebacker Von Miller tested positive for cannabis. Last September, he received a six-game suspension, which cost him $806,162 in salary. MLB and the NBA, in contrast, impose much lighter penalties on players who test positive for marijuana than they impose on players who test positive for other drugs.

The Developing Legality of Marijuana

Though a near majority of states have legalized marijuana, federal law still outlaws it as a Schedule 1 substance, the same classification for LSD and heroin. Under federal law, marijuana is considered to have a "high potential for abuse" and "lack of accepted medical use."

"Advocates for the drug maintain it can help players safely cope with pain and may even help them recover from concussions."
 

There are many public health and health care professionals who insist that the ban is deserved. The Foundation for a Drug Free World, for instance, contends that marijuana increases the risk of lung cancer and other lung problems. The psychoactive effects attributed to marijuana and caused by it containing tetrahydrocannabinol (THC) also impair cognitive reasoning. These psychoactive effects are a particular concern when those who are "high" drive cars or otherwise endanger the public.

The NFL -- the beneficiary of a six-year sponsorship deal with Anheuser-Busch worth more than $1 billion -- is especially sensitive to public safety concerns. There has been a recent spate of NFL player arrests for drunken driving and some of those arrests have involved marijuana. In September, for instance, San Francisco 49ers linebacker Aldon Smith was arrested for suspected driving under the influence and marijuana possession. He reportedly had a blood-alcohol level of nearly twice the limit under California law.

New state laws in Washington and Colorado that permit recreational use of marijuana are in blatant conflict with federal law. But federal law is not etched in stone; it can be amended. There is some support in Congress for amending Schedule 1 to remove cannabis. Even if Schedule 1 remains untouched, the federal government can selectively and permissively enforce it. Along those lines, the Obama administration recently signaled that the federal government will not interfere with states that legalize marijuana, so long as they also promulgate sensible rules for its sale.

Through one means or another, the federal prohibition on marijuana seems to be in its twilight years.

The Merits of the NFL Allowing Marijuana as a Pain Killer

How should the NFL and NFLPA react to a legalization of marijuana?

Roger Goodell
Marijuana advocates no doubt saw a different meaning in the words displayed as NFL commissioner Roger Goodell took the stage at last year's NFL Draft.
Michael LeBrecht/SI

One of the main reasons for permitting the use of marijuana would be to help NFL players cope with the pain of playing. According to Clint Werner, author of Marijuana Gateway to Health: How Cannabis Protects Us from Cancer and Alzheimer's Disease, marijuana is a safer and more effective substance for treating pain than many "legal" drugs. This is particularly true when inhaled through a vaporizer or sprayed under the tongue, methods that purportedly reduce the harmful and psychoactive effects associated with smoking pot. Werner goes so far as to claim that science will make heroes out of pro athletes ridiculed for marijuana use.

"Ricky Williams will be redeemed," Werner tells SI.com. "We didn't know the science of marijuana when he claimed it had healing benefits, but the science now confirms what he said. It wouldn't surprise me if he is to players' health what Curt Flood was to players' economic freedom: Both were marginalized because they fought for an unpopular cause that ultimately proved right."

The science Werner speaks of mainly concerns recent clinical studies that confirm that marijuana can significantly reduce pain. One study in the Journal of Pain, for instance, found that marijuana reduces pain associated with the spinal cord, while a study in Neuropsychopharmacology concluded that cannabis alleviates pain of HIV patients. Perhaps more important, side effects and addictive qualities from using marijuana have been found less substantial than those associated with "legal" pain killers, such as morphine or oxycodone. A study published this year by Lancet concluded that more people die each year from abusing pain killers than from abusing marijuana, cocaine and heroin.

Studies reflecting favorably on marijuana do not mean it would be appropriate for NFL players to use it. Dr. Donald Abrams, professor of clinical medicine at the University of California San Francisco and chief of the Hematology-Oncology Division at San Francisco General Hospital and Trauma Center, has conducted multiple studies on therapeutic uses of marijuana. He cautions that NFL players using marijuana during games or practices would bring obvious risk of harm to themselves and other players. But in light of the physical pain suffered by playing football, Abrams envisions marijuana as offering potential therapeutic benefits after games and while players rehab injuries. Abrams adds that marijuana is "probably a lot safer than a number of drugs permitted by the NFL" -- Adderall included.

Among players and agents, there is growing support for allowing players to use marijuana. One prominent agent, whose clients include several Pro Bowl players, tells SI.com that permitting marijuana should be viewed in the context of other choices for treatment.

"What is the alternative to marijuana?" he says. "The alternative sucks. Think about what players take for pain -- they take much more serious and much more addictive drugs. Vicodin. Percocet. Oxycodone. These are highly addictive and synthetically manufactured drugs. ... They can rip up your insides. I would much rather my guys take natural, less addictive stuff."

The Merits of the NFL Allowing Marijuana to Reflect Common Use

A former NFL general manager agrees that marijuana warrants reconsideration by the league and players' association. He contends that should marijuana become legal, a league policy banning it would be out of step.

"A lot of NFL players play and function at a high level while regularly using pot," he says. "That's the reality of it. They smoked pot in high school and college, just like many of their teammates and classmates."

Players can also easily evade positive marijuana test results, which are drawn from urine samples. "They call it 'the stupid test,' " the former GM says. Common evasion steps include adjusting usage of marijuana in advance of a test, employing masking agents and using someone else's urine for the drug sample. Players without established drug problems are also tested only once a year; if the player tests negative, he can regularly smoke marijuana the rest of the year and it would not be detected by the league.

"It won't matter what the research shows. Things won't change until public perception -- that is, those who financially support the league -- changes because there's too much money at stake."
-- Minneapolis attorney and former Patriots linebacker Shawn Stuckey

The relative ease at which players can get away with using marijuana is not lost on them. It's thought that a significant percentage of players regularly smoke pot. Former Bears wide receiver Sam Hurd, who in November was sentenced to 15 years in prison on a drug charge, recently told Sports Illustrated that "at least half" of NFL players smoked marijuana during his time in the league. Most of those alleged users are thought to have obtained their marijuana via the street, black market or friends. Some, as a result, may have purchased tainted and physically hazardous product. Jets tight end Kellen Winslow Jr. was charged in December with possession of Fubinaca, a synthetic form of marijuana.

The fact that NFL players' contracts are not guaranteed and they can usually be released with minimal financial obligation is also part of the equation, according to the agent interviewed for this story.

"Some players who smoke too much pot, fall asleep in meetings and they're not as able to grasp comprehensive schemes. I get that," the agent acknowledges. "Well, just replace them. Treat them like players who aren't fast enough or skilled enough or responsible enough: Cut them and move on. The market takes care of itself."

Former NFL linebacker Steve DeOssie, who overcame marijuana and alcohol problems early in his 12-year career, envisions the NFL regulating marijuana much like it regulates alcohol.

"If marijuana became legal, the reference point for the NFL would be alcohol," DeOssie says. "Personal responsibility by players would be key. Players would be responsible to not let it derail their careers."

DeOssie, who has not used marijuana since 1991 and is now an NFL analyst for Comcast SportsNet New England, warns players who believe marijuana is easily compatible with life as an NFL player: "Marijuana did not help my career."

The Speculative Merits of the NFL Allowing Marijuana as a Treatment for Concussions

In addition to treating pain, marijuana might offer a speculative but potentially profound benefit to NFL players: a reduction in brain damage caused by concussions. Although human studies have not confirmed such an advantage, Raphael Mechoulam, professor of medicinal chemistry and natural products at the Hebrew University in Jerusalem, says there are promising results with mice.

"We have shown in mice that damage due to concussions -- brain trauma -- is considerably lowered by compounds present in the brain," Mechoulam says. "They are called endocannabinoids. Apparently endocannabinoids represent a natural defense against this type of brain damage. ... [THC] mimics the action of endocannabinoids."

Mechoulam cautions that a link between using marijuana and reducing brain trauma is still theoretical and that common sense remains the best treatment for a concussed football player: "He should not continue playing -- he should be in bed."

U.S. District Judge Anita Brody's recent rejection of the proposed $765 million settlement between retired players and the league over longterm neurological problems purportedly caused by playing in the NFL also plays a role in this discussion. Marijuana use by NFL players could attract more attention in the event the league and retired players reach a new proposed settlement that Brody approves. A settlement, like the rejected one, would likely fund medical research on treating and preventing brain injury associated with playing football. If Brody approves a revised proposal, she would likely appoint a settlement administrator to decide how research money is spent.

As the former general manager points out, "It makes sense that some of any settlement money would be used to research if marijuana could help with brain injury." The agent feels similarly: "Concussions are a major threat to the sport. If marijuana could help at all with concussions, it's crazy not to study it."

Minneapolis attorney Shawn Stuckey, a linebacker for the New England Patriots in the late 1990s, cautions about the optics of funding marijuana research.

"If [settlement] money is 'taken away' from youth programs and devoted to 'marijuana research,' it would be a PR disaster for the league," he says.

Still, Stuckey, who practices at Zelle Hofmann and represented retired players in litigation against the NFL during the 2011 lockout, believes players could play a crucial role in demanding marijuana research.

"If research would show that marijuana could potentially alleviate the painful symptoms of brain diseases, I'm sure a certain amount of players would champion use of the concussion money for that purpose," Stuckey says.

The Mechanics of Changing NFL Rules on Marijuana

The NFL and players' association would negotiate any changes to the league's ban on marijuana.

A modest change would be to reduce the penalty for marijuana offenses to one less than that for other drugs. Other leagues take that approach with marijuana, and given the changing view of the drug, perhaps the NFL and NFLPA should follow. They could adopt an arrangement similar to the one used by the NBA, where players who test positive once or twice for marijuana receive treatment and fines; only upon a third positive test for marijuana does an NBA player face a suspension (five games). In contrast, NBA players who test positive just once for "drugs of abuse" like cocaine and heroin are disqualified for at least two years.

"A lot of NFL players play and function at a high level while regularly using pot. That's the reality of it. They smoked pot in high school and college, just like many of their teammates and classmates."
-- Former NFL general manager

Stuckey contends that a penalty reduction makes sense.

"There is no good reason why the rule shouldn't be changed," he says.

Players who are high are not more prone to criminal conduct before or after games, he's observed, and marijuana clearly does not help play.

"Smoking or ingesting marijuana would be tantamount to taking Benadryl or a sleeping pill before a game," Stuckey says. "As a player, I could have only dreamed of the opposing offensive lineman or running back getting high the day of a game."

A more dramatic change would be to permit NFL players to use marijuana for medicinal purposes. This change would not be made until players in all states could legally use marijuana for medicinal purposes. Should that time come to pass, the NFL and players' association could develop and implement therapeutic use exemption application procedures for marijuana use. The procedures would be comprehensive and would only permit a player to use marijuana when he proves the necessity. Such procedures already exist for Attention Deficit Hyperactive Disorder (ADHD) medication. The league rejects use exemption applications for Adderall and other ADHD medication unless players can convincingly establish a medical need. Players generally need to provide physicians' evaluations, medical tests and treatment plans to be seriously considered.

An even bolder change, and again one requiring clear legalization of marijuana, would be for NFL teams to actively use marijuana vaporizers and sprays to treat players for pain management and even concussion treatment. While the idea sounds far-fetched in 2014, perhaps it won't be five or 10 years from now. And as Goodell said, the NFL "will continue to support the evolution of medicine."

A potential road block to changes to the NFL's marijuana policy is the negotiation process itself.

"Everything that the league and players agree to stems from the give-and-take of negotiations," the former GM says. "Players will ask to use marijuana and the league will want something in return."

Stuckey emphasized that the league will feel pressure from sponsors to go slow.

"It won't matter what the research shows," he says. "Things won't change until public perception -- that is, those who financially support the league -- changes because there's too much money at stake."

DeOssie agrees: "The NFL tends to be slow to react to changes. The league won't address marijuana until it absolutely has to. This will be a long process for the NFL."

Fair enough, marijuana legalization advocates might say. Their drug being the subject of negotiations between the most popular sports league and its players' union would mean it's come a long way from when it was depicted as causing to the human brain what a frying pan does to eggs.

SI.COM FLASHBACK: NFL and NFLPA need to take closer look at possible painkiller abuse

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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