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Weed and the Wall

Weed and the Wall

The case involving Pat and Kevin Williams may end up being one of the most significant sports law cases in recent memory.  While the NFL may have won the short term battle, the NFL maybe positioned for a long term war of having to navigate a patchwork of state labor laws.  This article looks at what might become an issue for the NFL’s substance abuse policy come November.

The NFL suspended the Williams and some New Orleans Saints players after they tested positive for a banned substance.  The players filed a federal district court action seeking to block the punishments.  The court dismissed the players’ federal law claims remanded the Williams’ Minnesota state law claims to Minnesota state court.  In refusing to dismiss the Williams’ state laws claims the federal court rejected the NFL’s argument that the collective bargaining agreement displaced individual state laws regarding employment.  Essentially, the federal court told the NFL that players retain the rights granted to them under individual state statutes and those rights continue to exist despite conflicting policies that exist in the collective bargaining agreement.  Enter, California, the state that appears to be one voter initiative from the legalization of marijuana up to one ounce.

How does legalization in California affect the NFL’s substance abuse policy?  Well, California prohibits an employer from suspending an employee for participating in lawful conduct during non-working hours away from the employers premises.  See Cal. Labor Code § 96, (k).  While California’s law is very broad, the majority of states provide protections to off duty employees who smoke tobacco or consume alcohol.[1] However, a minority of states have laws comparable to California and put significant restraints on an employers ability to discipline an employee for use of legal products.  These states specifically prohibit employers from disciplining employees for using “lawfully consumable products” without limitation to what that product it is.[2] California and these minority states are home to nine NFL franchises.  It would seem that if the ballot initiative passes, players from the 49ers, Raiders and Chargers could legally smoke marijuana and the NFL would be prohibited from disciplining them under the collective bargaining agreement’s substance abuse policy.

However, it should be noted, that while California may legalize marijuana in the immediate future, marijuana possession in any amount will continue to be illegal under federal law for the foreseeable future.  But, the federal government will most likely adopt a hands off approach and agree not to enforce the federal law within the state’s borders if the state behaves itself.[3] This is the current approach the Obama administration has taken with respect to state’s that authorize medical marijuana.

Which really begs the question.  If recreational marijuana possession is allowable under state law and is not being prosecuted under federal law, can the recreational consumption of marijuana really be considered unlawful conduct under California’s employment statute?  No one knows the answer to this question.  But at least it makes the prospect of becoming a Raider slightly less unattractive.

You can follow me on Twitter @Globalpack

[1] For a full discussion see Ann L. Rives, You’re not the Boss of me, 74 GWLR 553 (2006).

[2] Minnesota, Minn. Stat. § 181.938, subd. (2) (2008); See also Colorado Rev. Stat. § 24-34-402.5(1) (2008); New York Lab. Law § 201-d(2) (McKinney 2008); North Dakota Cent. Code §§ 14-02.4-01 to -03 (2008).

[3] Landing a job at the Department of Justice is incredibly difficult.  No one works for the DOJ with the hopes that they can prosecute marijuana possession of under one ounce.

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Fan friendly comments only: off Comments (10) This filter will hide comments which have ratio of 5 to 1 down-vote to up-vote.

Asshalo's picture

"the federal government will most likely adopt a hands off approach and agree not to enforce the federal law within the state’s borders if the state behaves itself."

That is highly volatile depending on who and which party is president. Executive Branch has a lot of say in that. Tho Obama does not enfore the law, Bush definitely did. Either party getting elected in 2012 wouldn't surprise me.

The overlap between state and federal is pretty interesting though. Its further complicated by the surpreme court case between a sewing entity and the NFL. It's going to test their monopoly exemptions on a number of issues, including Labor negoiations (nod to Nagler for the past link). Based on current supreme court decisions, me thinks its going to be pro-business which bodes well for the NFL and not the NFLPA,
Really liking your insights Global. Good job.

PackersRS's picture

GREAT article Global.

One thing though. In soccer world, a day or two before an important game, teams reunite all the players, and put them in a hotel, away from their family, in a way to control their behavior, such as eating, sleeping, and going out.

I'm not sure it happens in the NFL, I think not (maybe SB), but if the law passes, I could see it happening for those teams. If I'm not wrong, Marijuana stays on your system for 48 hours. By confining the players to that period, prior to games, any player tested positive for it wouldn't have been using it during their "off duty" time, and rather during their work time, which, despite the CAL law, would still be illegal, and could still be part of the susbtance abuse policy...

Could be way off, but just a thought that crossed my mind.

Alex Tallitsch's picture

Marijuana stays in your system and your fat cells for up to 30 days and is easily detectable at most points in that time span. Don't ask me how I know that.

PackersRS's picture

So I was wrong... There goes my theory... Wonder what I was thinking about, that I read it would stay for 48 hours...

And good to know ;)

FITZCORE1252's picture

"Don’t ask me how I know that."

Yeah, I can vouch for Alex on that one....


Globalpack's picture

Thanks for all the positive comments guys. I learned that it stays in your system for a long time while I was in college.

FITZCORE1252's picture

Random drug testing will "weed' that out.

Just like one could have traces of alcohol show up the day after "hitting it hard" thus resulting in a failed drug test, the same would go for traces of marijuana in the system if tested. So, the state 'law' could legalize pot, yet the players 'employer' (the NFL) still reserves the right to punish however they deem appropriate if a failed drug test comes about.

Many items on the NFL's "banned" substance list are 'over-the-counter' items (legal), yet drug tests that yield these items result in a failing test, I don't see why pot should/would be any different... same as reporting to work with alcohol in your system.


FITZCORE1252's picture

On a side note:

Can anyone believe how long these two fat fux have dragged this thing out? I was appalled it was STILL going on at the start of last season, they got solid lawyers, I'll give 'em that... along with a bat to their purple domes.

Globalpack's picture

Fitz, the point of the article is that a minority of states have laws that prevent employers from disciplining employees from using legal substances. There is a reason why pot v. over the counter PED will be different. Explicit in those laws is that the employer can make policies that are necessary to their industry. The NFL has a valid reason why an employee can't use over the counter PEDs, as compared to my employer, which really wouldn't have a reason have a policy to prevent me from taking some kind of over the counter weight loss pill. While the NFL may have an interest in limiting enhancing drugs, that same logic couldn't apply to marijuana which doesn't enhance anyones performance. While no one probably wants to have pot head employees, not wanting to have an off duty pot smoker as an employee isn't a crucial interest, if off duty pot smoking affected work performance, they could be disciplined for performance. Finally, testing positive for alcohol in your system is different than testing for trace amounts of pot in your system. That is because if alcohol is your system it is affecting you. Unlike marijuana, which can produce a positive test for up to 30 days after it stopped affecting you.

FITZCORE1252's picture

Thanks Global. I get the gist of the piece. I'm just confident that the NFL has the clout/attorneys to get anything they want on their 'banned' list (leaguewide, despite individual state laws). This isn't the mom-and-pop- factory that employs 75 people trying to get this done, far, far from it. The NFL doesn't want a reputation for being a bunch of 'potheads'. I wouldn't be surprised if they could get it on the list just to protect their reputation. What Cush got busted for wasn't a PED, more of a masking agent. Not every banned Item is a PED. I'm sure the League would find a solid reason as to why pot should not be allowed.

"Finally, testing positive for alcohol in your system is different than testing for trace amounts of pot in your system."

I guess it depends in what capacity. In Washington state, you could get pulled over with red, glassy-eyes, raise suspicion with the cops and if you give a blood test "trace amounts of pot in your system" are just as good as blowing a 1.5... DUI (even if you're not high at the time). Also "trace amounts of pot in your system" are good enough to get you shit canned at any place I know of if you piss dirty, work-wise.

I guess I'd be shocked if the League didn't find a loophole to continue it's 'banned' status. We will see though, legalization is coming... just a matter of time. Good piece, Global


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