Marijuana and the Joint Drug Agreement
Last week’s report that Josh Hamilton could be facing an imminent suspension from Major League Baseball following an alleged violation of his drug treatment program has brought a renewed focus on MLB’s Joint Drug Agreement (JDA), and in particular its treatment of non-performance enhancing drugs. As I noted last week, in addition to PEDs and stimulants, the JDA also restricts MLB players’ use of various “drugs of abuse,” including: THC, hashish, marijuana, synthetic THC, cocaine, LSD, ecstasy, PCP, GHB (the date rape drug), and various opiates (oxycodone, heroin, morphine, etc.).
Interestingly, not all of these drugs are treated equally under the JDA. In particular, the JDA specifically carves out three – marijuana, hashish and synthetic THC – for special treatment. Although this carve-out wasn’t relevant to my post last week given the nature of the allegations against Hamilton, based on some of the comments it appears that MLB’s marijuana policy is of particular interest to some readers.
Because the JDA provisions governing drugs of abuse rarely come up, though – Jon Morosi reported last week, for instance, that no MLB player has been suspended for using an illegal narcotic since Josh Hamilton was himself suspended back in 2004 – relatively little attention has been paid to the intricacies of MLB’s marijuana policy.
To begin, MLB players are not subjected to random testing for any drugs of abuse, including marijuana. As I explained last week, a player will only enter MLB’s drug treatment program if he is suspected of using a drug of abuse, in which case the player will be referred to an MLB treatment board. The treatment board will then conduct an initial evaluation of the player to determine if he should be placed in an official treatment program. If he is, then the treatment board will devise an individual course of treatment for the player. If the player violates this treatment plan – by failing a drug test, for instance – then the JDA provides for a series of escalating potential punishments.
This is where MLB’s treatment of marijuana deviates from most of the other drugs of abuse. Under Section 7.D of the JDA, any player who violates a treatment program for any drug of abuse other than marijuana, hashish or synthetic THC will be suspended for 15- to 25- games for a first violation, 25- to 50- games for a second violation, 50- to 75- games for a third violation, and one year for a fourth violation. Additional violations would then be subject to punishment at the discretion of the commissioner.
For players in a treatment program for marijuana, hashish or synthetic THC, however, Section 7.D provides that any violations of the treatment program will not result in a suspension. Instead, players will face a series of escalating fines not to exceed $35,000 for marijuana-related violations. The only way that a player could face a suspension for violating a marijuana-related treatment program under Section 7.D would be if both (i) he was determined to have flagrantly disregarded his treatment program, and (ii) the commissioner were to determine that the player’s drug use presents a threat to the safety of other players. In that case, the commissioner could suspend the player for his marijuana use.
Obviously, then, the odds that a player will be suspended for marijuana use under Section 7.D are pretty slim. Not only would the player first have to be placed in a treatment program for his marijuana use – itself a relatively unlikely scenario – but his continuing violations of that program would have to be so flagrant that they lead the commissioner to conclude that the player presents a threat to others’ safety. It’s hard to imagine such a situation arising very often, if ever. So while not impossible, it is extremely unlikely that a player will ever be suspended for mere marijuana use alone under the JDA.
Section 7.E of the JDA would appear to present an exception to this general rule, though. That provision specifies that players convicted of the possession or use of a drug of abuse by a court of law will receive a 25- to 50-game suspension for a first conviction, 50- to 100- games for a second conviction, and a one-year suspension for a third conviction. Unlike Section 7.D, however, Section 7.E does not contain a carve-out for marijuana, meaning that any player convicted of a marijuana-related offense in court should presumably face a suspension.
That having been said, in recent years some MLB players (including Chris Perez, for instance) have not been suspended even though they were convicted of marijuana possession or use. Instead, these players have been placed in MLB’s drug treatment program.
At first glance, the failure to suspend a player convicted of a marijuana-related offense would seem to run contrary to Section 7.E. However, because earlier versions of the JDA specifically stated that players could not be suspended for such offenses, it appears that MLB is continuing to adhere to the prior policy despite the plain language of Section 7.E. (This also suggests that the failure to expressly omit marijuana convictions from Section 7.E in the current JDA may have been an oversight.)
The only sure-fire exception to MLB’s general policy of not suspending players for marijuana-related offenses, then, comes in Section 7.F of the JDA. That provision specifies that players involved in the sale or distribution of a drug of abuse will be suspended for a minimum of 80-games for a first offense (with progressively longer suspensions for subsequent convictions).
As with Section 7.E, Section 7.F does not contain a special carve-out for marijuana. Unlike Section 7.E, though, prior iterations of the JDA specifically stated that players could be suspended for the sale or distribution of marijuana, so it is reasonable to assume that a player caught selling or distributing marijuana would be suspended by MLB in the future.
The relative leniency of MLB’s marijuana policy is directly attributable to the Major League Baseball Players Association. Dating back to MLB’s first JDA in 2002, the players’ union has consistently opposed more stringent punishment for marijuana offenses.
Because the MLBPA only represents players on the 40-man roster, however, MLB has been able to impose harsher rules on minor leaguers. MLB’s Minor League Drug Prevention and Treatment Program restricts the use of all of the same drugs of abuse as MLB’s JDA (while also adding bath salts to the prohibited substances list), but enforces the restrictions considerably more strictly.
As an initial matter, unlike MLB players, minor leaguers not on a team’s 40-man roster are subjected to random drug testing throughout not only the playing season, but the off-season as well. The first time that a minor league player tests positive for a drug of abuse (including marijuana), he is placed in a treatment program. A second positive test results in a 50-game suspension, while a third violation is punishable via a 100-game suspension. Should a minor league player test positive a fourth time, he will be permanently suspended from organized baseball.
As others have noted, the stark differences between the MLB and minor league rules for marijuana use raise the possibility that some minor leaguers could try to openly use marijuana in order to force their teams to promote them to the 40-man roster. While this strategy may not work for ordinary minor leaguers, for top prospects it is not inconceivable that a team would choose to promote a player to the 40-man roster to ensure that the player would only be fined, not suspended, for his marijuana use. Otherwise, the team could see any marijuana-using top prospect sidelined for 50 or more games for a violation of the minor league drug rules.
For instance, Jeff Passan reported last year that Milwaukee placed Jeremy Jeffress on its 40-man roster earlier than necessary in 2010 in order to avoid losing him to a possible lifetime suspension for a third violation of the minor league marijuana rules (Jeffress had already been suspended for 50- and 100-games for earlier violations).
Not only are MLB’s marijuana rules more lenient than those applying to minor league players, but they are also notably more lax than the policies in both the National Football League and National Basketball Association. Unlike MLB, players in both the NFL and NBA are subject to random drug testing. NBA players testing positive for marijuana are initially placed in a treatment program, but can ultimately be suspended for five games for a third violation. NFL players, meanwhile, face potential suspensions of up to 10 games for marijuana use.
Once again, the difference among the leagues is largely attributable to the MLBPA, the strongest union in professional sports. Still, considering the direction in which public opinion appears to be headed on the issue of marijuana legalization, it is probably only a matter of time until the other leagues modify their marijuana policies to be more in line with MLB’s.
Nathaniel Grow is an Associate Professor of Business Law and Ethics and the Yormark Family Director of the Sports Industry Workshop at Indiana University's Kelley School of Business. He is the author of Baseball on Trial: The Origin of Baseball's Antitrust Exemption, as well as a number of sports-related law review articles. You can follow him on Twitter @NathanielGrow. The views expressed are solely those of the author and do not express the views or opinions of Indiana University.
10 years for weed? God damnnn
I think it was reported that Milwaukee put Jeffress on the 40-man roster due in part to more lenient discipline back in 2010 when it happened or at most the next year. It wasn’t reported by Jeff Passan in 2014 for the first time.
Jon Singleton?
Minor Leaguers aren’t people under CBA
How perfect is that?
“Professor Grow,” my mistake.
MLB should treat marijuana exactly the same way they treat alcohol. This would simplify all the rules,and it would probably make the players union happy. The only difference would be selling marijuana as that is still illegal in most parts of the country.
“NFL players, meanwhile, face potential suspensions of up to 10 games for marijuana use.”
Or however long Roger Goodell deems necessary.
What about other forms of marijuna besides joints
what?
the title of the article…
No professional athlete should ever be suspended for weed. It’s really just not that serious.
Unless you’re selling it to eight-year olds nobody should get in trouble for weed.
In that case a suspension would be unnecessary, as selling weed to 8 year olds would most certainly lead to prison time
I think prison time would be considered trouble, wouldn’t it?
8 years olds, dude.
We reserve the right to refuse service to anyone.
It may not be that serious for the ordinary citizen. But we are taking about Professional athletes. They get paid to perform athletic abilities using their bodies. They should treat their bodies like a temple. Their employers make huge financial investments in them. It’s not unreasonable of the employer to discourage actions/behavior that are not healthy to that athletes performance or well being. MLB teams provide these athletes access and resources to athletic trainers, training facilities, strength & conditioning coaches, nutritionists massage therapists and mental skills coaches for a reason; To achieve and maintain optimum performance. Last time I checked, using marijuana was not something recommended to athletes by trainers or nutritionists to be a better athlete. Just like junk food and cigarette smoking, it is harmful to an athletes body and performance. Like I said, it may not be “serious”, but a marijuana smoking athlete just doesn’t make sense.
Unless that athlete has glaucoma…
Probably has not been studied enough in athletes to know whether it’s use is of benefit or hindrance. And even then it would certainly depend upon the sport and the parameters of use, let alone those of enhancement. Aren’t we past the whole drugs r bad mmkay categorical statements yet?
Who said they smoke it? What if they vape?
I consider this blog post an elegant and carefully-planned Grow operation. Well done.
Article title: Pun?
Please PLEASE PLEASE do not contribute to calling GHB (a chemical that naturally occurs in your body and had myriad beneficial therapeutic and recreational u uses) the date rape drug.
There have been all of zero confirmed cases of GHB date rape. The amount to get a person to pass out is about SEVEN GRAMS of a foul tasting salt that even the drunkest person would spit out if it was in a drink.
That was reefer madness, lsd jumping off buildings level anti drug hysteria propaganda.
There remains only one actual date rape drug of choice.
Alcohol.
Sorry but it drives me crazy when absurd propaganda is repeated. It’s false and contributes to the continued banning of a drug many physicians have wanted off of the banned list.
And more importantly when outright lies are repeated as truth enough times it becomes the conventional wisdom. GHB recreationally is basically alcohol without the dizziness. It has the exact same side effects aside from tasting truly vile.
Therapeutically it is an extremely effective anxyiolitic and has been used to fantastic effect in alcohol and opiate withdrawal treatment. Nearly eliminating the serious detox symptoms associated with withdrawal.
I should also point out that i personally do not think it’s a great recreational drug. But then I’m not really a drinker. People who do like being drunk would find it to be a safer, shorter acting less heavy drunk without the hangover and extreme dizziness and nausea.
I’m not saying you’re wrong, but it’s hard to trust some random commenter who isn’t citing medical studies. I think most of us can agree that the reefer madness stuff was easily overstated, but I’m cautious of people who have clear and one-sided views on subjects without providing strong scientific evidence to back it up.
Dank post dude.
The IOOC classifies THC as a PED for Archery and Pentathlon.
Well i suppose THC can have an increased focus effect. Certainly not as much as nicotine and caffeine the two best “focus” drugs.
Hard to understand the strange dualism when it comes to which drugs are just fine and which are not. There’s really almost no actual science involved in these decisions.
And certainly there’s literally zero science involved in the criminalization of drugs. It’s basically a gut feeling by governments.
Should really only be for basketball. That’s the only sport where those I know play better on weed
Why suspend players?. It helps nobody, player, team or fan. Just fine team an amount in an equivalent amount as a suspension would cost them. So instead of a 50 game suspension they lose 1/3 of their after tax pay, or about 15-20% of their gross annual salary)
Yeahhhhhh, baseball teams don’t pay fines. Players do.
Hopefully I will be grandfathered.
Curious about the possible ramifications for Everth Cabrera. He already had a suspension under the PED clause of the JDA. He is still awaiting his criminal hearing for a misdemeanor related to possession of pot. Would the previous PED suspension count in the sequencing of penalties if he now faces a penalty for drug of abuse? Is the any distinction in the JDA between felony and misdemeanor convictions? Is it impacted at all by the fact that he’s in camp as a non-roster invitee?
It’s legal in how many states now? If it helps someone relax after a game who cares. It must be an incredible grind in the MLB and different people have different ways of reducing stress. James Garner, made a big stir many years ago when he wrote in his autobiography that smoking pot was his savior for dealing with stress. He said it should be legal and alcohol illegal.
And if a player wants to hit the bong before facing Aroldis Chapman why not give him a shot?
A shot of what?
I know NOTHING!
Mind if I do a J?