Federally Mandated Random Drug Testing in Professional Athletics: Constitutional Issues

CRS Report for Congress
Federally Mandated
Random Drug Testing
in Professional Athletics:
Constitutional Issues
Updated June 27, 2005
Charles V. Dale
Legislative Attorney
American Law Division


Congressional Research Service ˜ The Library of Congress

Federally Mandated Random Drug Testing in
Professional Athletics: Constitutional Issues
Summary
Problems of usage of steroids and other performance enhancing drugs in
professional and amateur athletics have been the focus of a series of investigative
hearings before the House Government Reform Committee. The Committee began
taking evidence on March 17, 2005, when several former and current players,
medical experts, and major league baseball executives were summoned to testify in
the first hearing. Committee Chairman Tom Davis has urged all sports leagues to
“acknowledge that their testing programs need improvement” and has framed bi-
partisan legislation to establish a uniform testing policy for major professional sports
leagues. Currently, there are four professional athletic drug testing bills before
Congress: S. 1114 (Senator McCain); H.R. 2565 (Representative Davis); H.R. 1862
(Representative Stearns); and H.R. 2516 (Representative Sweeney). The McCain and
Davis bills are virtually identical, and all four bills would establish minimum drug
standards – including random testing – for some professional sports leagues.
Congressionally mandated drug-testing requirements for both public employees
and workers in private industry subject to federal regulation have a fairly long and
well established legal history. Nonetheless, the federal courts have recognized limits,
largely anchored in constitutional privacy interests of affected workers, that
circumscribe governmental authority to impose suspicionless random testing
requirements in the public or private sectors. These decisions establish that
“compelling” governmental interests may, in appropriate circumstances, override
constitutional objections to testing procedures by employees whose privacy
expectations are diminished by the nature of their duties or workplace scrutiny to
which they are otherwise subject. They further suggest, however, that substantial
constitutional difficulties probably confront any broad-based testing program that is
not limited to specific occupational categories or to persons for whom the
government is able to demonstrate some special need to test.
It could be argued that professional players have a diminished expectation of
privacy as the consequence of league or association rules that already require routine
physical examinations and testing for drugs in certain circumstances. Moreover, a
separate argument could be made that safety and health concerns associated with
steroid usage, and the importance of professional athletes as role models for the
nation’s youth, justify unannounced testing for anabolic steroids or other controlled
substances. Testing of randomly selected athletes may also be the least intrusive
route to an effective steroid detection program. Past major league baseball
procedures, it has been argued, do not deter steroid use. Moreover, arguably, the
reasonable suspicion standard may be unworkable since most often there may be no
outward symptoms to signal the use of steroids.



Contents
Constitutional Background......................................2
Performance Enhancing Drugs in Professional Sports.................5



Federally Mandated Random Drug Testing
in Professional Athletics: Constitutional
Issues
Problems of usage of steroids and other performance enhancing drugs in
professional and amateur athletics have been the focus of a series of investigative
hearings before the House Government Reform Committee. The Committee began
taking evidence on March 17, 2005, when several former and current players,
medical experts, and major league baseball executives were summoned to testify in
the first hearing. National Football League Commissioner Paul Tagliabue next
testified, on April 27th, concerning details of the NFL steroid testing procedures and
how they were negotiated between the league and the NFL players’ union. The
Committee also requested summaries of all test results during the period that testing
has been in place, although not the names of individual players. Similar requests
have reportedly been made of National Basketball Association, National Hockey
League, US Soccer Federation, Major League Soccer, Association of Tennis
Professionals, USA Track and Field, and USA Cycling. Committee Chairman Tom
Davis has urged all sports leagues to “acknowledge that their testing programs need
improvement” and has framed bi-partisan legislation to establish a uniform testing1
policy for major professional sports leagues. Currently, there are four professional
athletic drug testing bills before Congress: S. 1114 (Senator McCain); H.R. 2565
(Representative Davis); H.R. 1862 (Representative Stearns); and H.R. 2516
(Representative Sweeney). The McCain and Davis bills are virtually identical, and
all four bills would establish minimum drug standards – including random testing –
for some professional sports leagues.
The McCain/Davis proposal, for example, would require “major professional
sports leagues” – defined to include Major League Baseball, the National Football
League, the National Basketball Association, and the National Hockey League, and
any “successor leagues” – to implement independently administered drug testing
programs mirroring the standard of the United States Anti-Doping Agency
(USADA). At a minimum, each professional athlete would have to be tested without
advance notice no less than five times each calendar year, including at least two off-
season tests. Each test would have to cover all substances prohibited in USADA’s
anti-doping code and would have to be analyzed at a USADA-approved lab.
Athletes testing positive (or refusing to test) a first time must be suspended a
minimum of two years and would be subject to permanent suspension from the
professional sports association for any later infraction. The leagues would be required
to disclose positive tests and resulting penalties to the public. Each covered league


1 4/28/05 Phila. Daily News 70, 2005 WLNR 6611442.

would have to develop an adjudication process to provide the athlete who tests
positive a hearing (after notice), representation of counsel, and the right to appeal.
While such proceedings are pending, the athlete in question would be suspended. For
a detailed discussion of all measures currently before Congress on the subject, see
CRS Report RS22156, Drug Testing in Sports: Proposed Legislation, by Nathan
Brooks.
Congressionally mandated drug testing requirements for both public employees
and workers in private industry subject to federal regulation have a fairly long and
well-established legal history. Nonetheless, as described more fully below, the
federal courts have recognized limits, largely anchored in constitutional privacy
interests of affected workers, that circumscribe governmental authority to impose
suspicionless random testing requirements in the public or private sectors. This
report examines relevant judicial precedents for their applicability to the issue of
random testing for performance-enhancing substances in professional athletics.
Constitutional Background
Constitutional law on the subject of governmentally mandated drug-testing is
primarily an outgrowth of the Fourth Amendment prohibition on unreasonable
searches and seizures.2 A judicial exception to traditional requirements of a warrant
and individualized suspicion for “administrative” searches has been applied to
random drug testing of government employees, and of private employees tested
pursuant to government regulation. In the employment setting, such testing has been
justified under a “special needs” analysis, which the courts have applied in relatively
narrow circumstances directly implicating “compelling” public safety, law
enforcement, or national security interests of the government. More generalized
governmental concerns for the “integrity” or efficient operation of the public
workplace have usually not been deemed sufficient to justify interference with the
“reasonable expectation of privacy” of workers or other individuals to be tested
The Supreme Court in 1989 applied the “special needs” doctrine to dispense
with the normal warrant and probable cause requirements of the Fourth Amendment
when the government demonstrates compelling justification “beyond ordinary law
enforcement” for an employee drug testing program. In National Treasury


2 Drug testing programs have also been challenged under the First, Fifth, and Fourteenth
Amendments, based on arguments that the testing procedures or some other aspect of the
program violated rights to due process, equal protection, privacy, and freedom of religion.
In general, such claims have proven unsuccessful where the testing program included legal
safeguards, such as the use of non-discriminatory testing practices, chain of custody
procedures, confidentiality, adequate notice, properly certified laboratories, confirmatory
tests, and other procedures designed to ensure fairness and to minimize the intrusiveness of
the drug testing program. See, e.g. Shoemaker v. Handel, 795 F.2d 1136, 1139-41, 1143
(referring to selective enforcement of urine testing of jockeys as denying them equalth
protection of the laws); Rushton v. Nebraska Pub. Power District, 844 F.2d 562, 564-66 (8
Cir. 1988)(discussing plaintiffs’ contention that the drug testing program violated their First
Amendment rights).

Employees Union v. Von Raab,3 extraordinary safety and national security concerns
justified urinalysis testing of Customs Service employees seeking transfer or
promotion to positions directly linked to drug interdiction, handling classified
information, or the carriage of firearms. Similarly, in Skinner v. Railway Labor
Executives’ Ass’n,4 neither a warrant nor particularized suspicion was required for a
Federal Railway Administration (FRA) program of blood and urine tests for railroad
employees involved in accidents or who violated certain safety standards. In both
cases, the Court emphasized that special needs analysis applied only where testing
was not used as a prosecutorial tool. In Veronia School District v. Acton,5 the
Supreme Court first approved of random drug testing procedures – for high school
student athletes rather than public employees – a holding that it later extended to
permit random drug testing of students participating in non-athletic extracurricular
activities as well. However, the Court distinguished earlier rulings when, in
Chandler v. Miller,6 it voided a Georgia law requiring drug testing of candidates for
state office because no "special need" substantial enough to warrant suspicionless
searches was shown.
The Supreme Court in Skinner discarded the reasonable suspicion standard for
testing within industries that are “pervasively regulated.” The rationale is that the
existence of extensive federal or state regulation in and of itself diminishes the
reasonable expectation of privacy of those involved in the industry. The primary
issue before the lower courts in Shoemaker v. Handel7 was whether state-mandated
drug and alcohol tests, administered without individualized suspicion, to
thoroughbred race horse jockeys by the New Jersey Racing Commission, violated the
Fourth Amendment.
The district court upheld the program, finding that the jockeys voluntarily
participated in horse racing and that the state had shown a compelling need for
conducting the tests. First, the court recognized that horse racing was a unique class
of industry subject to “heavy” state regulation. Second, jockeys were licensed by the
state and had received notice of the implementation of the tests. Although notice and
licensure did not serve as a waiver of Fourth Amendment rights, they were factors
to be considered in balancing the jockey’s expectations of privacy against the needs
of the state. Third, the state had a vital interest in ensuring that the horse racing
industry was run honestly and safely and that the public perceived it as such. Finally,
the jockeys tested were selected by random drawing not subject to the bias or
discretion of test administrators.
The Third Circuit Court of Appeals affirmed the district court decision. In
particular, the appellate opinion emphasized the pervasiveness of New Jersey state
regulation and the state’s “strong” interest in preserving the “integrity” of the horse-


3 489 U.S. 656 (1989).
4 489 U.S. 602 (1989).
5 515 U.S. 646 (1995).
6 520 U.S. 305 (1997).
7 619 F. Supp. 1089 (D.N.J. 1985), aff’d, 795 F.2d 1136 (3d Cir. 1986).

racing industry. In assessing the reasonableness of the testing scheme, the
Shoemaker court found that the integrity of a sport, from which large sums of
revenue were collected, outweighed the jockeys’ individual privacy interests.
New Jersey has a strong interest in assuring the public of the integrity of persons
engaged in the horse racing industry. Public confidence forms the foundation for
the success of an industry based on wagering. Frequent alcohol and drug testing
is an effective means of demonstrating that persons in the horse racing industry
are not subject to certain outside influences. It is the public’s perception, not the
known suspicion, that triggers the state’s strong interest in conducting8
warrantless testing.
Summing up, the Third Circuit concluded that to justify governmentally imposed
random testing, there must be a “strong state interest” in the search and “the
pervasive regulation of the industry must have reduced the justifiable privacy9
expectation of the subject of the search.” Other post-Shoemaker rulings are in
agreem ent . 10
In Veronia School District v. Acton, 11 the Supreme Court sustained a random
drug-testing program for high school students engaged in interscholastic athletic
competition. The Student Athlete Drug Policy required mandatory and random
suspicionless urinalysis testing of all student athletes within the district. The purpose
of the policy was to protect the health and safety of the athletes and to rehabilitate
drug users by enrolling them in a drug assistance program. All students wanting to
participate in a school-sponsored sports team had to provide a consent form, signed
both by the student and his or her parents, acquiescing in the tests. Each athlete was
tested at the beginning of the athletic season, and anytime during the season that such
student’s name was randomly selected. Ten percent of the athletes were randomly
drawn each week from a pool for testing.
The Supreme Court found that the privacy interest of high school student
athletes is diminished by “an element of ‘communal undress’ inherent in athletic
competition.” “School sports are not for the bashful,” and by choosing to participate
in athletics the students “voluntarily subject themselves to a degree of regulation


8 Id. at 1142.
9 Id.
10 See e.g. Dimeo v. Griffin, 943 F.2d 679 (7th Cir 1991)(en banc) where the full appeals
court upheld a similar rule of the Illinois Racing Board on behalf of jockeys and other horse
racing participants required to submit to suspicionless drug testing. In striking a balance
between the intrusiveness of the rule and the Board’s reasons for it, the court cited the
state’s substantial interest in promoting the safety of participants as well as protecting
financial revenue which it derive from the betting public’s interest in a “clean” sport. The
opinion also stressed that since jockeys and other participants were subject to frequent
medical examinations, they had a diminished expectation of privacy, which was outweighed
by the state’s interests in this case.
11 515 U.S. 646 (1995).

even higher than that imposed on students generally.”12 Moreover, an “immediate
crisis,” caused by “a sharp increase in drug use” in the school district, triggered
installation of the program. District Court findings established that student athletes
were not only “among the drug users,” they were “leaders of the drug culture.”13 The
opinion emphasized that “students within the school environment have a lesser
expectation of privacy than members of the public generally.”14
Balanced against this diminished expectation, the Court determined that the
state’s interest in protecting the physical and mental well-being of student athletes
while in state custody was “important – indeed perhaps compelling.” In this regard,
the program’s context was “central” to Justice Scalia’s majority opinion. Local
government bears large “responsibilities, under a public school system, as guardian
and tutor of children entrusted to its care.”15 Because of this “custodial and tutelary”
relationship between the government and its students, school officials regularly
exercise “a degree of supervisory control that could not be exercised over free
adults.”
In Board of Education v. Earls,16 the Court pressed the Veronia School District
rationale one step further, finding that because of its unique relationship with
students, the state’s interest in preventing drug use outweighs the privacy interest of
students participating in any competitive extracurricular activities. In addition,
Earls noted “this Court has not required a particularized or pervasive drug problem
before allowing the government to conduct suspicionless drug testing”17 and would
not set a threshold level of drug abuse sufficient to support a drug testing program.
Instead, the Court found that prevention of harm to school children tested sufficed
to demonstrate the necessity for a drug testing policy.
Performance Enhancing Drugs in Professional Sports
These decisions establish that “compelling” governmental interests may, in
appropriate circumstances, override constitutional objections to testing procedures
by employees whose privacy expectations are diminished by the nature of their duties
or workplace scrutiny to which they are otherwise subject. They further suggest,
however, that substantial constitutional difficulties probably confront any broad-
based testing program that is not limited to specific occupational categories or to
persons for whom the government is able to demonstrate some special need to test.
A special need has generally been found where there is a history of drug abuse in an
industry, when the employment involves work in safety-sensitive or high risk
positions, or where there is evidence that drug use has led to accidents or other
dangers to the public welfare. But, as Justice Scalia suggests in Veronia School


12 Id. at 650.
13 Id at 649.
14 Id. at 657.
15 Id. at 665.
16 536 U.S. 822 (2002)
17 Id. at 835.

District, the concept may be sufficiently elastic to encompass any “interest that
appears important enough to justify the particular search at hand, in light of other
factors that show the search to be relatively intrusive upon a genuine expectation of
privacy.”18 As such, the legality of any mandatory testing regime may depend upon
the range of governmental interests that the Court ultimately declares to be
“compelling” for Fourth Amendment purposes, and how close the required “nexus”
to such interests must be to justify random testing of specific individuals or groups.
The application of the Shoemaker precedent would seem to require judicial
recognition that professional sports, like horse racing involved there, is a “closely
regulated industry.” While professional baseball, football, and hockey may be subject
to union collective bargaining agreements and other largely self-imposed owners’
association and league rules, the hand of government in day- to-day team governance
and control appears to be far less. Instead, owners individually and in association
remain largely free to set their own standards for player conduct and team management,
and even enjoy some limited exemptions from federal regulation – antitrust, for example
– that apply to other business sectors. Nor, unlike the jockeys in Shoemaker, are
professional baseball or football players licensed by state or federal authorities, a
potentially relevant distinction. In short, the position of the professional athlete may be
readily distinguishable from the jockeys in Shoemaker and railroad workers in Skinner.
For similar reasons, the “custodial and tutelary” relationship of the state to student
athletes would appear to deprive Veronia School District and its progeny of direct
precedential (though perhaps not persuasive) value.
Even apart from governmental regulation, however, it could be countered that
professional players have a diminished expectation of privacy as the consequence of
league or association rules that already require routine physical examinations and testing
for drugs in certain circumstances. Moreover, a separate argument could be made that
safety and health concerns associated with steroid usage, and the importance of
professional athletes as role models for the nation’s youth, justify unannounced testing
for anabolic steroids or other controlled substances. Medical evidence could be
mustered in the course of ongoing congressional hearings of the adverse health effects,
not only to the steroid users, but to the safety of other players. Second, it could be
argued, protecting the integrity of the game may be particularly important given the
demonstrable influence of professional athletes on young players at all levels. The NFL,
for example, cites three reasons, including the health of players, for its concern about
the use of prohibited substances.
[They] threaten the fairness and integrity of the athletic competition on the playing
field ... [T]he League is concerned with the adverse health effects of steroid use.
Although research is continuing, steroid use has been linked to a number of
physiological, psychological, orthopedic, reproductive, and other serious health
problems ...[T]he use of Prohibited Substances by NFL players sends the wrong19


message to young people who may be tempted to use them.
18 Id. at 661 (emphasis in original).
19 National Football League, National Football League Policy on Anabolic Steroids and
Related Substances, 2003 (as amended May 15, 2003), p. 1. Similarly, one of the purposes
(continued...)

Thus, both the NFL and World Anti-Doping Agency have acknowledged that steroid use
can undermine the health of athletes and the fairness of athletic competition.
Finally, testing of randomly selected athletes may be the least intrusive route to an
effective steroid detection program. “It seems to us self-evident that a drug problem
largely fueled by the ‘role model’ effect of athletes’ drug use, and of particular danger
to athletes, is effectively addressed by making sure that athletes do not use drugs.”20
Past major league baseball procedures, it appears, do not deter steroid use. Moreover,
arguably, the reasonable suspicion standard may be unworkable since most often there
may be no outward symptoms to signal the use of steroids. Thus, the suspicionless,
administrative search exception might be the only means of effectively deterring athletes
from using steroids. In addition, it may avoid possible problems of subjectivity and
prejudice that arguably attend the application of “reasonable cause” or other suspicion-
based standards.


19 (...continued)
of the World Anti-Doping Program and the World Anti-Doping Code is “[t]o protect the
Athletes’ fundamental right to participate in doping-free sport and thus promote health,
fairness, and equality for Athletes worldwide...” World Anti-Doping Agency, World Anti-
Doping Code, 2003, available at
[http://www.wada-ama.org/rtecontent/document/code_v3.pdf], p. 1.
20 Veronia, 515 U.S. at 636.