Marijuana and the Joint Drug Agreement by Nathaniel Grow March 5, 2015 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.