NCAA Drug Testing Policies and Student-Athlete’s Privacy Rights
By Catie McKay, Staff Writer
The world of collegiate athletics is full of privilege, prestige, and power. No matter the level or sport of choice to compete in, athletes subject themselves to the requirements and rules decided upon by the National Collegiate Athletic Association (NCAA). Where does the NCAA get the authority to institute these rules over its athletes?
The rules set forth for athletes are made for the NCAA by member institutions, acting collectively and democratically at national conventions. [1] Hill v. National Collegiate Athletic Assn., 865 P.2d 633 (Cal. 1994). At the NCAA’s 1986 convention, the proposal for the institution of a mandatory drug-testing program was adopted. Id. There are several categories of chemical substances on the banned drug list that the NCAA prohibits, including anabolic steroids, diuretics, and street drugs. Id. The NCAA requires a consent form to be signed at the beginning of each competition year and specific procedures must be followed when a student-athlete is chosen. Id. The urination test used to monitor its drug policy is administered in the presence of an NCAA official monitor of the same sex. Id. If there is a positive result or if student athletes refuse to submit themselves, the result is the same: a bar from competition. Id.
Beyond positive test results come sanctions, and other annual testing requirements under the NCAA, and most likely the student will be subjected to their institution’s procedures as well. Student-athletes who test positive or provide three or more dilute urine samples may be tested at any time following a positive test [3]. After any suspensions, students will be given an “exit test” which includes testing for all listed banned substances. Id.
Many students have had problems with this required testing, and what they must subject themselves to. An apparent issue is that students must sign the NCAA consent forms, and most likely their own institution’s consent form in order to be able to participate in athletics in the first place. They really have no choice but to consent to these practices, if they want to participate in practice, competition, or athletic events outside of play. So although they must provide their consent, they have no choice to do otherwise.
Regarding the constitutionality of the NCAA’s drug testing procedures, in Hill v. National Collegiate Athletic Assn., 865 P.2d 633 (Cal. 1994), the California Supreme Court held that the drug-testing policy, including the monitoring of urination and disclosure of medical information, did not violate a right to privacy protected under Article 1 § 1 of the California state constitution. In this particular case Stanford University sought to take the side of their athletes. Id. Although this prominent case was decided twenty years ago, it serves as the foundation for the growth of the NCAA’s drug testing policy today, with the court noting that athletes should have a diminished expectation of privacy because they already “voluntarily undergo frequent physical examinations, reveal their body and medical conditions to coaches and trainers, and often undress in same-sex locker rooms.” Id.
Many agree with the California Supreme Court’s decision, arguing that student-athletes choose to take part in collegiate athletics, and must perform to a higher standard. They in no way should violate their own health and well being through the use of any banned substance. However, there have been recent attempts by athletes to lessen the strict rules placed upon them by the NCAA beyond those violating their right to privacy. Many student-athletes believe that although they consent to certain practices, they should still retain some expectation of privacy and other rights.
The more recent attempts of college athletes to unionize have threatened the status of the NCAA’s drug testing policy. [2] If colleges can classify student-athletes as employees, and they are allowed to unionize, the bargaining power of the athletes will increase, thus allowing them to negotiate on their own terms. It will certainly be interesting to see where the NCAA will go with such a major decision that will highly impact the status of all current and future student-athletes. Major implications stand for big time athletes, those playing at large Division I top schools. They will be more likely to qualify as an “employee” of a school, bringing in money for ticket sales and apparel, for example. In a 2010 survey of college student-athletes, division I men’s basketball players reported an average of 39.2 hours spent per week, and football players at FBS schools reported 43.3 hours per week. This is the amount of time that regular employees would be spending at a full time job, with some being paid overtime. [4].
The unionization of athletes will create a number of difficulties within the industry. Where will the line be drawn then when deciding which sports to allow the ability to unionize? How much revenue will be required for certain athletes to be deemed as employees? The legal ramifications can be significant if student-athletes chose to “lighten up” on certain policies, such as drug testing. Athletes can also change areas such as recruiting, scholarships, and extra benefits. The largest concerns rest in the areas of antitrust law, amateurism, and fairness. [5]. The Supreme Court expressed its concerns with such topics, stating that “the amateur status of the athletes who play college sports is part of what makes college sports such an attractive product and serves to distinguish them from other sports.” Id. Regardless of the current state of the NCAA and their drug testing policies, there are sure to be major changes made in the future regarding many areas of college athletics. These changes may affect the many different rules and regulations the NCAA have put in place to protect their athletes and maintain the integrity of their work.
Sources:
[1] Hill v. National Collegiate Athletic Assn., 865 P.2d 633 (Cal. 1994).
[2] Frank J. Cavico, Unionization and College Athletics: An Emerging Legal, Ethical, and Practical Quandary, Jan. 2015.
[3] NCAA Rules and Regulations http://www.ncaa.org/sites/default/files/Drug%20Testing%20Program%20for%202015%20FINAL.pdf
[4] Alex Moyer. Throwing Out The Playbook: Replacing the NCAA’s Anticompetitive Amateurism Regime with the Olympic Model. 83 Geo. Wash. L. Rev. 761 (2015).
[5] Rohith Parasuraman. Unionizing NCAA Division I Athletics: A Viable Solution?, 57 Duke L.J. 727 (2007).
