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A Test With Nothing But Tough Questions
Douglas S. Looney
August 09, 1982
Should the NFL's players be checked for drugs by urinalysis? By and large, management says yes, the players no
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August 09, 1982

A Test With Nothing But Tough Questions

Should the NFL's players be checked for drugs by urinalysis? By and large, management says yes, the players no

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Now that it has become evident that drug abuse is a pervasive problem in the National Football League, battle lines have been drawn on the explosive issue of how best to deal with it—and specifically on whether players should be tested. The debate involves heated disagreement over the question of privacy, the subject of testing techniques and, indeed, matters of honor. At present the opposing sides are far apart. San Diego Coach Don Coryell says, "Anybody who won't take a drug test just doesn't want to play football." Gene Upshaw, the Raiders' veteran lineman and president of the NFL Players Association, asserts, "To suggest urinalysis [the standard method of detecting drugs] for players is an insult to our integrity. We will not participate."

By and large, NFL management favors testing. Most players oppose it. Undoubtedly, how the league ultimately resolves the question will affect how other professional sports in the U.S. deal with it. At the moment, only the NFL seems to be giving the issue serious consideration.

"Athletes will put anything into their bodies they think might help them," says Dr. S. Joseph Mule, one of the nation's leading authorities on drug testing and laboratory director of New York State's Division of Substance Abuse Services. " Coke sets up lots of high-level aggression and makes a football player ready to go out and kill. Amphetamines do an even better job of instilling levels of rage and aggression. There is no question about the need for urinalysis in football if they want a clean game." Jack Manton, an Atlanta lawyer who represents a number of pro athletes, concurs. "This drug situation is going to destroy pro sports if something isn't done," he says. "Who's going to want to take their kids to see a bunch of drug abusers?"

As more and more NFL players publicly acknowledge that they have drug problems, the demand for testing grows. And there is ample precedent for it. Authorities in many other sports, including track and field, swimming and boxing, have for years used urinalysis to detect drugs, and rarely has an athlete refused to comply. "In my sport it's guilty until proven innocent," says high jumper Dwight Stones. "I say test every competitor in every event at every meet or the hell with it." Adds Dr. David Cowan, deputy director of drug testing for the International Olympic Committee, "Ninety-nine percent of our athletes see it as a sensible move that can only help improve athletics and the fairness of their sport."

To be sure, some NFL players agree with Raider Running Back Greg Pruitt, who says, "If you've got nothing to hide, why worry about urinalysis," and with Denver Linebacker Tom Jackson, who says, "Let's do the test, run all the results in the paper, and then everybody can judge for himself." Still, the majority side with Upshaw and NFLPA Executive Director Ed Garvey, who maintains that "forcing the players to take a drug test is illegal."

But is it? According to Alan F. Westin, a professor of government at Columbia specializing in employee rights and constitutional law, "The courts would have to weigh the owners' claim that drug testing is necessary to protect the integrity of the game and the public's perception of the game versus the players' claim that the testing forces them to engage in a shameful and improper disclosure of their personal condition." The NFLPA has cited inalienable "rights of privacy" in resisting management's position. Such rights aren't clearly spelled out in the Constitution or in federal statutes, and according to Elmer Oettinger, chairman of the American Bar Association's privacy committee, the privacy question "is in sort of a mess, or at least uncertain." On the state level, at which any postarbitrator complaint would probably be heard, the laws aren't any more helpful than federal statutes.

Alan Dershowitz, professor of law at Harvard and author of The Best Defense, says, "Some states simply don't respect the right of privacy, and some states are backing away from it." The states that don't back away will have many and varied precedents to consider. Successful defenses of an employer's decision to test for drugs have often been based upon the "greater good" doctrine. That is, in some cases the public at large benefits from the possible infringement of an individual's rights. A bus company, say, can routinely check its drivers, and a cop, say, can give a motorist suspected of being intoxicated a Breathalyzer test because the public safety is of paramount importance.

"Greater good—that's an exceptional legal doctrine," says Dershowitz. "You'd be really hard pressed to fit that rationale to the NFL.... Driving is a helluva lot more dangerous than punting."

However, Westin points out that the owners could claim that without drug testing "the public's trust and confidence in the sport could be jeopardized, which would hurt the integrity and thereby the profitability of the game." He also notes that, as media coverage of the issue increases, the owners have an ever stronger argument that nothing short of stern measures are needed to ensure confidence in the sport.

Garvey, for one, doesn't think these points will ever be argued in court. Nor does he believe that, if all other contractual disputes between the owners and the players are resolved, the drug testing issue will lead to a strike. "It will never get to that posture," he says. "Management doesn't feel that strongly about it." Nonetheless, Vince Lombardi Jr., assistant executive director of the NFL Management Council, states, "We will not sign any agreement that gives up our right to drug test."

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