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Wednesday, February 27, 2008
Would Legislation Providing for Mandatory Drug Testing of Professional Athletes Pass Constitutional Muster?

The answer to that question could be, and has been, the subject of an entire law review article. But I want to touch upon it today because the timing is right in light of today's hearing in front of the House Subcommittee on Commerce, Trade and Consumer Protection. In his opening statement, Chairman Bobby Rush said: "If Congress can play a role in shaping public policy to eradicate all sports at every level of these substances, then this subcommittee is prepared to act. I resent all the elitists and cultural critics who dismiss this as an issue of populist spectacle. I believe that we can move forward in a measured, deliberative and partisan manner with the legislation that seriously tackles drugs in sports." MLBPA executive director Don Fehr later said, "It should be noted that any legislation governing drug testing in private industry surely raises troubling constitutional questions."

In Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), the Supreme Court addressed whether it was constitutional for a school district to adopt a policy implementing random urinalysis drug testing of student-athletes, the expressed purpose of which is "to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs." The Supreme Court noted that "state-compelled collection and testing of urine, such as that required by the Policy, constitutes a 'search' subject to the demands of the Fourth Amendment" and that "[w]arrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause." But "[a] search unsupported by probable cause can be constitutional, we have said, 'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" In upholding the constitutionality of the school district's drug testing policy, the Supreme Court also noted:
We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.
The in loco parentis rationale -- the fact that "the subjects of the policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster" -- was central to the Supreme Court's determination that it met the "special needs" requirement. In other cases, the Supreme Court has found special needs in upholding suspicionless searches and seizures (1) to conduct drug testing of railroad personnel involved in train accidents, (2) to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction, and (3) to maintain automobile checkpoints looking for illegal immigrants and contraband. Does mandatory drug testing of professional athletes satisfy the "special needs" requirement?

And from a privacy standpoint, the Supreme Court noted that "the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function." Well, that would obviously be a legitimate concern with federal legislation imposing mandatory testing of professional athletes.


If mandatory drug testing is written into law, can Congress further mandate who administers the tests? I recently argued that MLB should turn to the World Anti-Doping Agency to ensure independent results, but what would Congress likely suggest?

Blogger Jason -- 2/27/2008 5:06 PM  

From a practical standpoint it is absurd. As the Mitchell Report notes, drug policies must be flexible to be able to adopt to best practices as they evolve and to keep up with the cheaters in this cat-and-mouse game. It would be very tough for Congress to adopt such a policy. They could delegate to an administrative agency – such as USADA. But any police it implements would establish minimum standards that MLB could use as a shield for when things go wrong.
If Congress wants to get involved, force the Controlled Substance Act. Drug testing is a second best alternative. WADA/USADA testing wasn’t picking up the international athletes who were caught in the BALCO investigation. Giambi and Bonds weren’t the only athletes involved in that. To WADA’s credit, it did properly have positive test results on Jones before she was acquitted because of the short half life of the substance and the delay in the B sample.
This competition between WADA and American professional sports leagues is also very beneficial. Both are fighting for credibility as to who is better. This competition in a cat-and-mouse problem is very important.
As to another Constitutional argument, by taking drug testing out of collective bargaining would violate equal protection – as such rights clearly exist for other unionized employees who do not belong to the class of “professional athletes.” Possible because of the privacy rights involved such equal protection analysis would be more than mere rational basis review.
In my opinion, any congressional legislation will just stifle MLB from improving its policy.

Anonymous Anonymous -- 2/27/2008 6:19 PM  

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