• Student Brief: The Legal Implications of Drug Testing in Sports by Professor Schmidt

    by  • November 4, 2009 • Faculty Workshops/ Conferences, Student Contributions • 3 Comments

    By student blogger Mark Berardi 

        The Sports and Entertainment Law
    Society recruited Professor Christopher Schmidt of Chicago-Kent College of Law
    to present the history and legal implications of drug testing in sports.
    Professor Schmidt’s talk drew on a project he is currently working on entitled,
    “Governing Baseball.” He is exploring the history of the relationship between
    baseball and the government through four case studies: (1) The appointment of Judge Kenesaw Mountain Landis as the first
    Commissioner of baseball in the wake of the Black Sox Scandal; (2) the
    integration of baseball; (3) team relocations and the expansion of major league
    baseball in the 1950s and 1960s; and (4) the introduction of drug testing in
    the past decade. He argues that while organized baseball has generally prided
    itself on its independence from government regulation, the game actually has a
    long history of reliance on government, and, furthermore, government
    involvement has generally benefited the game.

                    Professor Schmidt
    began the presentation by explaining how there has been a long history of use
    or abuse of substances in baseball. 
    Alcohol has always been a part of the game, and in the 1970s and 1980s
    the game went through several cocaine scandals. 
    Players regularly relied up stimulants, from caffeine to amphetamines, to
    help them get through the season. With regard to performance enhancing drug
    usage in baseball, he then explained that recent history can be divided into
    three eras. From around 1980 through 1994, there was a period in which there
    were rumors and rumblings of a steroid problem in the MLB. From after the 1994
    players’ union strike through 2004, the steroid era ruled. Finally, the time
    from 2004 to the present is considered the beginning of the end of the steroid

                    During the first
    era, the use of steroids and other performance enhancing drugs was a big
    problem for the NFL, the Olympics and other sports, but not so much baseball.
    Until the 1980s, ballplayers generally believed that bulky muscles were not
    good for hitting. In 1990, the US got involved and created the Anabolic
    Steroids Act, which lists steroids as a controlled substance. Then, in 1991,
    the MLB commissioner sent out a memo to all owners telling them that steroids
    are prohibited substances, but did not institute any kind of testing. The
    owners made half-hearted attempts to create a testing program through the
    collective bargaining process, but the players’ union steadfastly opposed all
    such proposals.  For years, the union
    succeeded at keeping testing out of the game.

                    The 1998 season
    saw an offensive explosion and the home run race between Mark McGwire and Sammy
    Sosa. This was great for baseball teams and, since other players wanted the
    attention of the media as well, steroid use increased dramatically. Although
    players such as Ken Caminiti and Jose Conseco would in the coming years
    publicly claim that baseball was riddled with steroid users, there was a tacit acceptance
    of steroids in major league baseball. The owners loved that players were
    driving up demand for baseball tickets and the players loved to be able to
    demand huge contracts and media attention. Professor Schmidt explained that,
    despite baseball’s pride of its independence from government intervention,
    those who controlled the game proved incapable of confronting the problem
    themselves. There was a need for the government to help to stop the use of
    steroids in baseball. 

                    With more player
    exposes and continued rumors of steroid use, and in the face of public pressure
    and threats from Congress, the owners and the players in 2002 finally agreed to
    a provisional “survey”  testing program,
    designed to determine whether a problem really existed.  At this point, the government got involved.
    In 2003 federal agents raided BALCO labs in California. President Bush, in his
    2004 State of the Union address, demanded that sports leaders do something
    about steroids, likening it to a public health epidemic. Congress held several
    hearings on the issue.  Then, in 2004,
    Congress amended the Controlled Substance Act to include various steroids and
    steroid-like substances that had previously been available without a
    prescription. Finally, in 2005, the players’ union agreed to a strong testing
    program tied to the Controlled Substance Act list of drugs, and in 2007 MLB
    hired ex-Senator George Mitchell to conduct an independent investigation of
    baseball in the steroid era.  The
    government intervention pushed the apathetic MLB into testing its players.

                    Professor Schmidt
    suggested that in order to consider an appropriate remedy for performance
    enhancing drugs, we should first examine the reasons for prohibiting them.
    There are three most commonly cited reasons. 
    First is the argument that the use of these drugs is cheating and hurts
    the integrity of the game. Second is the argument that the risk of medical harm
    necessitates the banning of these drugs. 
    And third is the idea that baseball players are role models, and their
    use of these drugs leads to a public health concern if children begin using
    them. Despite the arguments that the government should not get involved in
    major league sports’ drug regulation, Professor Schmidt concluded that
    government intervention was the only way that baseball would be cleaned up
    since neither the owners nor the players wanted change.

    Finally, Professor Schmidt described the
    thorny legal issues involved in sport drug testing.  He discussed some of the constitutional
    issues of privacy that arise from drug regulation, concluding that there is not
    much room for argument on behalf of the players as long as there is a process
    of appeals.  The sharing of information
    between federal law enforcement officials and MLB might also raise some legal
    concerns.  Recently NFL players have
    successfully used state-level workplace laws to challenge league drug testing
    policy, a development with potentially transformative implications for drug
    testing in professional sports.  He concluded
    by noting that the current zone of growing concern for MLB is steroid use by
    players outside of the country who are recruited to play in the U.S. 


    The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

    3 Responses to Student Brief: The Legal Implications of Drug Testing in Sports by Professor Schmidt

    1. Sportboys
      December 7, 2009 at 4:53 am

      Using of drug in sports is very common. And due to this testing has become needed. It must be applied in all sports.

    2. Mike
      August 21, 2010 at 2:21 pm

      “Recently NFL players have successfully used state-level workplace laws to challenge league drug testing policy..>”
      What about when players turn it back on the NFL and use “science” to prove that have OAS (ala Brian Cushing)? The NFL needs to do something about that.

    3. megaman
      August 23, 2010 at 7:50 pm

      That OAS stuff was completely ridiculous. Seriously, look at a picture of Cushing’s junior year of college, and compare it to his first year of NFL football. The transformation is clearly artificial.

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