is it time to pay attention? critiquing the ......brain-boosting pills, and supplements and what’s...

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IS IT TIME TO PAY ATTENTION?CRITIQUING THE COGNITIVE

ENHANCEMENT DRUG POLICIES ANDAPPEALS PROCESS IN UNITED STATES

COLLEGIATE SPORTS

David Swiedler*

I. INTRODUCTION

In specific professions, performance-enhancing drugs have be-come the preferred method of cheating.1 “The market for en-hancement drugs is growing at an alarming rate, raising seriousethical, legal, and social issues for our society.”2 In professionalsports, for example, the use of performance enhancing drugs(“PEDs”) has a very extensive history and has been documentedand debated for decades.3

Traditionally, professional sports organizations have vigilantlymonitored athletes for performance-enhancing drug abuse.Most Recently, [S]enator George Mitchell released a 409-pagereport detailing the findings of his twenty-month investigationinto the use of steroids and HGH in Major League Baseball.The day after Senator Mitchell released his report, PresidentBush—a former co-owner of the Texas Rangers—said, “[W]ecan jump to this conclusion: that steroids have sullied the

* Articles Editor, Cardozo Journal of Conflict Resolution; J.D. Candidate, 2017, Benjamin N.Cardozo School of Law. The author would like to thank his family, friends, and mentors fortheir support and encouragement. In addition, he would like to thank Professor Charles J.Moxley Jr. for his insight and guidance in drafting this Note.

1 See Alex Kingsbury, Performance Enhancing Drugs: Not Just Baseball, U.S. NEWS &WORLD REPORT (Jan. 29, 2008), http:// www.usnews.com/news/national/articles/2008/01/29/performance-enhancing-drugs-not-just-baseball (explaining that due to the stressful demands onclassical musicians, many resort to the use of performance enhancing drugs).

2 Nicholas W. Schieffelin, Note, Maintaining Educational and Athletic Integrity: How WillSchools Combat Performance-Enhancing Drug Use?, 40 SUFFOLK U. L. REV. 959, 979 (2007); seeHenry T. Greely, Neuroethics and ELSI: Similarities and Differences, 7 MINN. J. L. SCI. & TECH.599, 599, 613–15, 627–29 (2006) (comparing ethical, legal, and social implications of new geneticand neuroscience technologies). See also Julie Deardorff, Revving Up the Brain, CHI. TRIB.,Mar. 7, 2004, at Q1 (probing looming moral and ethical issues surrounding future cognitive en-hancement drugs); Unmesh Kher, Can You Find Concentration in a Bottle? A Guide to Today’sBrain-Boosting Pills, and Supplements and What’s in the Pipeline, TIME, Jan. 8, 2006, at 98 (not-ing growing market for “brain-boosting” pills in United States).

3 How We Got Here: A Timeline of Performance-Enhancing Drugs in Sports, SPORTS ILLUS-

TRATED (Mar. 11, 2008), http://www.si.com/more-sports/2008/03/11/steroid-timeline.

489


490 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:489

game.” The performance-enhancing drug epidemic is not re-stricted to the baseball diamond. Unfortunately, the problemhas leaked into the classroom where students are abusing Ad-derall and other similar cognitive enhancers to raise their gradesartificially.4

Throughout the United States, there are currently more than460,000 National College Athletic Association (“NCAA”) student-athletes who compete across a number of different sports.5 Unsur-prisingly, because of the intense rigors of academia and immensepressure to succeed in all aspects of life, cognitive PEDs, such asAdderall, are becoming more prevalent among college students,leading to increased usage among collegiate student-athletes as op-posed to physical PEDs like steroids.6

This Note examines PED use in college sports, focusing prima-rily on cognitive enhancing drugs7 as an example of a common le-thal PED, and the current NCAA drug-testing regulations anddisciplinary process to explore its efficiency and fairness. Then, theNote proposes changes to the NCAA protocol, specificallychanges to the appeals process for student-athletes who fail drugtests for PED use and request a review of the disciplinary actionstaken against them by the NCAA.

II. BACKGROUND

The purpose of this section is to give background informationon PEDs, specifically for stimulants like Adderall, among collegestudent-athletes. First, it will explain the history of PEDs in sports

4 James Pavisian, The Case for Human Ingenuity: How Adderall Has Sullied the Game, 48WASHBURN L.J. 175, 175–76 (2008) (quoting Bush Says Steroids Have ‘Sullied’ Baseball, FOX

NEWS (Dec. 14, 2007), http://www.foxnews.com/story/0,2933,316849,00.html). See Sal Ruibal,Tackling Longtime Issue of Drugs No. 2 on Sports Changes Wish List, USA TODAY (Sept. 9,2004), http:// www.usatoday.com/sports/2004-09-09-ten-changes-drugs-testing_x.htm; George J.Mitchell, Report to the Commissioner of Baseball of an Independent Investigation into the IllegalUse of Steroids and Other Performance Enhancing Substances by Players in Major League Base-ball, MLB.COM (Dec. 13, 2007), http://files.mlb.com/mitchrpt.pdf [hereinafter Mitchell Report].See also Brittany Levine, Weekly Check Up: Adderall Abuse, GW HATCHET (Dec. 11, 2006),http://www.gwhatchet.com/2006/12/11/weekly-check-up-adderall-abuse/.

5 NCAA, http://www.ncaa.org/student-athletes (last visited Jan. 25, 2016).6 See Shaheen E. Larkhan & Annette Kirchgessner, Prescription Stimulants in Individuals

with and Without Attention Deficit Hyperactivity Disorder: Misuse, Cognitive Impact, and Ad-verse Effects, NCBI (Sept. 2012) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3489818/.

7 Drugs that increase brain function, unlike steroids which tend to have more physicaleffects.


2017] COGNITIVE ENHANCEMENT DRUG POLICIES 491

and a recent shift from using physically enhancing drugs, like ster-oids, to using cognitive enhancing drugs (“CEDs”), such as Adder-all. Second, the background section will explain the composition ofAdderall, its uses, advantages, and its potential side effects. Third,the background section will discuss the performance-enhancingcharacteristics of Adderall and CEDs alike, and will explore theproblem of abuse on college campuses by students. Lastly, it willexamine the recent trend of abuse in college sports, discuss the cur-rent policies and procedures that the NCAA utilizes for testing andpenalizing student-athletes for PED use, and what exceptions theNCAA makes to allow student-athletes to use certain PEDs.

A. Historical Use of Performance Enhancing Drugs by Athletes

The use of performance-enhancing drugs by athletes is not anew phenomenon. Although little scientific research exists to sup-port claims that illegal steroid use can enhance athletic perform-ance, athletes use PEDs for increasing strength and muscle size,enhancing muscle definition, reducing body fat, shortening recov-ery time after a difficult training session or competition, and havingmore energy to train longer and more intensely.8

Historians acknowledge that athletes, dating as far back as theancient Greeks and presumably earlier, would use “any availablemeans,”9 such as teas and diet alterations, ointments and rubs, toincrease their performance levels and attempt to ensure victory.10

In the past, many of these tactics merely provided athletes with“psychological support” or intimidated the competition.11 Athletes

8 Sarah R. Heisler, Steroid Regulation in Professional Sports: Sarbanes-Oxley as a Guide, 27CARDOZO ARTS & ENT. L.J. 199, 205 (2009). See also WILL CARROLL, THE JUICE: THE REAL

STORY OF BASEBALL’S DRUG PROBLEMS 26 (2005); Rick Collins, Changing the Game: The Con-gressional Response to Sports Doping Via the Anabolic Steroid Control Act, 40 NEW ENG. L.REV. 753, 762 (2006).

9 ANGELA J. SCHNEIDER & THEODORE FRIEDMANN, GENE DOPING IN SPORTS: THE SCI-

ENCE AND ETHICS OF GENETICALLY MODIFIED ATHLETES 6–7 (2006) (“[G]iven the opportunity,athletes and their trainers and handlers will resort to many illicit techniques and substances toprovide a competitive advantage in sports.”); Heisler, supra note 8. See also PAUL D.STAUDOHAR, THE SPORTS INDUSTRY AND COLLECTIVE BARGAINING 2 (1986) (“American cul-ture has a particular fascination with winning, which explains some of the attention given tocompetitive sports and the boom in these sports at the professional level.”); Paul H. Haagen, ThePlayers Have Lost that Argument: Doping, Drug Testing, and Collective Bargaining, 40 NEW

ENG. L. REV. 831, 849 (2006) (“Sports competition at any serious level is about excess.”).10 STAUDOHAR, supra note 9; Maxwell J. Mehlman et al., Doping in Sports and the Use of

State Power, 50 ST. LOUIS U. L.J. 15, 17 (2005).11 SCHNEIDER & FRIEDMAN, supra note 9.



began using steroids in sports in the 1950s when the Eastern Euro-pean and Soviet athletes initially used steroids to enhance theirstrength and performance for competitions.12 By the 1960s, the useof steroids became prevalent among American weightlifters13 andfootball players in the NFL.14 As the use of steroids by athletescontinued to spread, athletic governing organizations began to es-tablish regulations to regulate PED use and testing.15 For example,in order to maintain the ethical persona of sports, in 1968 the Win-ter Olympics required athletes to subject themselves to drug test-ing.16 In 1975, the International Olympic Committee (“IOC”)banned steroids “because [they] might give an unfair advantage tothe athletes who used performance-enhancing drugs.”17 The sever-ity of the problem did not cause public concern until 1988 whenCanadian track and field star Ben Johnson tested positive for thesteroid stanozolol, which resulted in the IOC stripping him of hisgold medal awarded at the Olympics in Seoul.18 Johnson’s positivetest confirmed not only what many suspected of Eastern Europeanathletes, but revealed a promulgated problem of world-class ath-letes “using chemicals to enhance their performances.”19

Moreover, due to the high drug regulation policies of steroidslike stanozolo and the associated increased risk of punishment byway of prison and societal disapproval for using PEDs, this dis-turbing problem has developed into one revolving around prescrip-tion drugs with performance-enhancing qualities, such asAdderall.20 Adderall and other CEDs have become more popular,

12 Heather M. Feuerhelm, The Win at Any Price Syndrome: Steroids in Athletics, in SPORTS

AND THE LAW: MAJOR LEGAL CASES 71 (Charles E. Quirk ed., 1996). See generally Mehlman etal., supra note 10, at 17–26 (providing a thorough historical overview of the use of PEDs insports).

13 Feuerhelm, supra note 12, at 73.14 See SHAUN ASSAEL, STEROID NATION: JUICED HOME RUN TOTALS, ANTI-AGING MIRA-

CLES, AND A HERCULES IN EVERY HIGH SCHOOL: THE SECRET HISTORY OF AMERICA’S TRUE

DRUG ADDICTION 58 (2007) (identifying a split among MLB players: those who only publiclyopposed IPED testing, and those who really were “tired of giving up 500-foot home runs.”).

15 Feuerhelm, supra note 12, at 73.16 Id.17 Id.18 Haagen, supra note 9, at 837 (citing Laurie Mifflin, Johnson’s Testing Leaves Questions,

N.Y. TIMES, Sept. 27, 1988, at D31).19 MARK FAINARU-WADA & LANCE WILLIAMS, GAME OF SHADOWS: BARRY BONDS,

BALCO, AND THE STEROIDS SCANDAL THAT ROCKED PROFESSIONAL SPORTS 18 (2006) (citingthe Senate Commerce Committee’s threat that “[i]f baseball’s leaders didn’t enact a toughersteroid program, Congress would do it for them.”).

20 Judy Battista, Drug of Focus is at the Center of Suspensions, N.Y. TIMES, Dec. 2, 2012, atSP4 (“That Adderall use and abuse has made its way to the N.F.L. surprises few, because



especially at the college level, and are PEDs much in the same wayas steroids.21

B. What is Adderall?

Adderall is a federally controlled stimulant medication thattargets the central nervous system and is prescribed to help individ-uals with Attention Deficit Disorder (ADD) or Attention DeficitHyperactivity Disorder (ADHD).”22 In more scientific terms, Ad-derall is defined as a “single-entity amphetamine product combin-ing the neutral sulfate salts of dextroamphetamine andamphetamine, with the dextro isomer of amphetamine saccharateand d, I-amphetamine aspartate.”23 The mixture of d-amphet-amines and I-amphetamines, typically administered in a single doseof ten or thirty milligrams, reaches its maximum strength approxi-mately three hours after ingestion.24

However, like all drugs, Adderall use has many potential neg-ative side effects.25 Side effects can include trouble sleeping, lossof appetite, weight loss, hallucinations, seizures, and involuntarybody movements or shaking.26 In fact, the Adderall drug facts la-beled on each prescription makes legal users aware of the follow-ing as risks: “fast, pounding, or uneven heartbeat; feeling light-headed, fainting, increased blood pressure (severe headache,blurred vision, trouble concentrating, chest pain, numbness,seizure); or tremor, restlessness, hallucinations, unusual behavior,or motor tics (muscle twitches).”27 Additionally, Adderall use forextended periods of time, especially by people who are not legally

A.D.H.D. diagnoses and the use of medication to control it have sharply increased in recentyears.”).

21 Id. (“It’s certainly a performance-enhancing drug . . . . [C]ollege kids call it the Supermandrug. Take someone who is tired after a long practice, give them a stimulant [and] [i]t amps uptheir mood and energy.”) (quoting Dr. Leah Lagos, a New York sports psychologist who hasworked with college and professional athletes).

22 U.S. FOOD & DRUG ADMIN., FDA APPROVED DRUG PRODUCTS, ADDERALL MEDICA-

TION GUIDE, http://www.fda.gov/downloads/Drugs/DrugSafety/UCM467750.pdf (last visitedSept. 30, 2015). See CTR. FOR DISEASE CONTROL & PREVENTION, ATTENTION-DEFICIT/HYPER-

ACTIVITY DISORDER (ADHD) (2015), http:// www.cdc.gov/ncbddd/adhd/.23 Adderall, DRUGS.COM, http://www.drugs.com/pro/adderall.html (last visited Oct. 15, 2015).24 Id.25 U.S. FOOD & DRUG ADMIN, supra note 22.26 Stefanie Stolz, Adderall Abuse: Regulating the Academic Steroid, 41 J.L. & EDUC. 585,

586–87 (2012); Adderall, supra note 23.27 Adderall, supra note 23.



prescribed the drug and are less aware of its risks, can result insevere dependence on the drug.28 Due to the potential for extremeabuse and the major negative side effects previously described thatthe United States Drug Enforcement Agency classifies Adderall asa Schedule II drug.29

C. Characteristics that Make Adderall a Performance-EnhancingDrug and its Varying Uses

In individuals with ADHD, Adderall works to balance twochemicals in the brain: dopamine and norepinephrine.30 More spe-cifically, “ADHD medications reduce hyperactivity and impulsivityand improve [an individual’s] ability to focus, work, and learn.Medication also may improve physical coordination.”31 However,in individuals without ADHD, “[a]n increase in dopamine andnorepinephrine . . . allows them to focus and concentrate on tasksbetter than normal.”32 In other words, the increase in dopamineand norepinephrine acts as a long-lasting boost in energy, concen-tration, and aggressiveness that many athletes not only dream of,but crave.33

In fact, in war, a different context from sports and athletesaltogether, one of the most sought after human enhancements for asoldier is the ability to maintain vigilance, be prepared longer, andbe better than the enemy.34

At the extreme, this ability has been celebrated in science fic-tion, with one author suggesting that people genetically-engi-neered to require no sleep at all would quickly take over the

28 See 21 U.S.C.A. § 812 (West Supp. 2009) (explaining the characteristics and classificationof a Schedule II drug, which includes Adderall and ADD medications).

29 Id.; see Stolz, supra note 26, at 587.30 Pavisian, supra note 4, at 179–80.31 Attention Deficit Hyperactivity Disorder (ADHD), NAT’L INST. MENTAL HEALTH, http://

www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorder-adhd/index.shtml#part_145449 (last visited Oct. 20, 2015).

32 Id.33 Larry Stone, Adderall Has Become a Popular Drug for Athletes Trying to Gain an Edge,

SEATTLE TIMES (Nov. 28, 2012), http://www.seattletimes.com/sports/seahawks/adderall-has-be-come-a-popular-drug-for-athletes-trying-to-gain-an-edge/. See Shaul Turner, ADHD Drug Ad-derall Has Performance Enhancement Side Effects, FOX 31 DENVER (Sept. 3, 2014), http://kdvr.com/2014/09/03/adhd-drug-adderall-has-performance-enhancement-side-effects/ (explainingthat “the drug is being used to give athletes an edge.”).

34 Catherine L. Annas & George J. Annas, Enhancing the Fighting Force: Medical Researchon American Soldiers, 25 J. CONTEMP. HEALTH L. & POL’Y 283, 292 (2009).



world. In the real world, a number of population groups aresusceptible to the use of amphetamines to stay awake duringwork or other tasks: college students cramming for exams, ath-letes, commercial pilots during long shifts, physicians, and mili-tary personnel. The military and medical justifications for usingamphetamines in this way are more persuasive than a student oran athlete—soldiers are in life-threatening situations wheretheir senses need to be sharp, and surgeons hold the lives ofothers in their hands.35

Delving into this extreme further, air force pilots are constantlyforced into situations where they are required to perform a quickintake of the surrounding circumstance, a rapid cost-benefit analy-sis of possible options, and an almost instantaneous decision.36

Given the kind of performance enhancing qualities that Adderallcan have, it is unsurprising why an athlete would benefit fromCEDs in the context of athletic competition.

D. Abuse of CEDs on College Campuses andAmong College Athletes

Due to Adderall’s valuable effects on an individual’s attentionspan, it is not surprising that Adderall is a common drug amongcollege students, especially for those without a diagnosis of ADDor ADHD.37

The misuse of a stimulant medication—taking a stimulant notprescribed by a physician or in a manner not in accordance withphysician guidance—has been growing over the past two de-cades. In fact, in the past 10 years there has been a surge inprevalence rates of nonprescription stimulant use among bothadolescents and young adults . . . . Among college-aged individ-uals (ages 18–25) . . . usage increased significantly from 3.6% in2000 to 5.4% by 2006.38

35 Id. (citing Nancy Kress’s “sleepless trilogy”: NANCY KRESS, BEGGARS IN SPAIN (1993),NANCY KRESS, BEGGARS AND CHOOSERS (1994), and NANCY KRESS, BEGGARS RIDE (1996));Christian Teter et al., Illicit Use of Specific Prescription Stimulants Among College Students:Prevalence, Motives and Routes of Administration, 26 PHARMACOTHERAPY 1501 (2006); Mitch-ell, supra note 4, at 5.

36 Annas & Annas, supra note 34, at 294–95.37 Arianna Yanes, Just Say Yes? The Rise of ‘Study Drugs’ in College, CNN (Apr. 18, 2014),

http://www.cnn.com/2014/04/17/health/adderall-college-students/ (“Prescription ADHD medica-tions like Adderall, Ritalin, and Vyvanse are becoming increasingly popular for overworked andoverscheduled college students—who haven’t been diagnosed with ADHD.”).

38 Larkhan & Kirchgessner, supra note 6.



Furthermore, in a more recent study performed in 2009 by the Na-tional Survey on Drug Use and Health, “[f]ull-time college stu-dents aged 18 to 22 were twice as likely as their counterparts whowere not full-time college students to have used Adderall non-medically in the past year.”39

Because Adderall is used so often, it is likely that access to thedrug is not properly regulated.40 Doctors who normally prescribedsuch medications in the past, specifically psychiatrists,41 haveevolved from trained medical personnel willing to consult patients,to avid prescription writers in order to fulfill patients’ needs fasterand bill insurance companies more often.42 But, impatient, apa-thetic, or greedy doctors are not the only ones to blame.43 Part ofthe problem contributing to the easy access of CEDs among col-lege students are the college institutions themselves.44 “Collegestudents can simply go to the health clinic on campus and obtain aprescription for Adderall after an ADHD diagnosis. The process iseasy for most, and many students are misdiagnosed with ADHD inthis manner.”45 Because on-campus university health clinics are soconvenient for college students and tailored to student’s needs, stu-dents tend to bypass the more rigorous testing performed by pri-vate psychiatrists.46

A recent survey showed that 591 of 1387 students not diagnosedwith Attention Deficit Hyperactivity Disorder (ADHD) hadused Adderall or other stimulants without a prescription. Thismeans that 4.9% of eighth graders, 8.5% of tenth graders, and atleast 10% of twelfth graders have used Adderall despite nothaving a prescription for the drug. Approximately 25% of col-

39 National Survey on Drug Use and Health, Nonmedical Use of Adderall Among Full-TimeCollege Students, SAMSA (Apr. 7, 2009), http://archive.samhsa.gov/data/2k9/adderall/adderall.pdf.

40 See Larkhan & Kirchgessner, supra note 6 (“[T]here has been a surge in prevalence ratesof nonprescription stimulant use among both adolescents and young adults . . . . Among college-aged individuals (ages 18–25) . . . usage increased significantly from 3.6% in 2000 to 5.4% by2006.”).

41 John M. Grohol, Top 25 Psychiatrist Medication Prescriptions for 2013, PSYCHCENTRAL,http://psychcentral.com/lib/top-25-psychiatric-medication-prescriptions-for-2013/ (last visitedJan. 16, 2016).

42 See Gardiner Harris, Talk Doesn’t Pay, So Psychiatry Turns Instead to Drug Therapy,N.Y. TIMES, Mar. 6, 2011, at A1 (explaining that “changes in how much insurance will pay, nolonger provides talk therapy, the form of psychiatry popularized by Sigmund Freud . . . . Instead,[psychiatrists] prescribe[e] medication, usually after a brief consultation with each patient.”).

43 Stolz, supra note 26, at 586.44 Id.45 Id.46 Id.



lege students admit to using Adderall to help prepare for andtake exams. Since 1990, sales of ADHD medications like Ad-derall have increased by 400 percent.47

E. Prevalence In Professional Sports and Influenceon College Athletes

The stress of wanting to maximize performance in the class-room and on the playing field is not the only reason for the increas-ingly high prevalence and misuse of Adderall among collegeathletes. Throughout the last ten years, professional athletes havebeen linked to ADD medications legally and illegally.48 More re-cently, in 2014, Major League Baseball (“MLB”) player Chris Da-vis was suspended for twenty-five games for testing positive twicefor Adderall.49 While Davis had previously been allowed to useAdderall by the MLB by receiving an exemption, Davis was notgranted the exemption for the 2014 baseball season.50 Further-more, Davis was originally diagnosed with ADD in 2008 during hisfirst season in the MLB and had not previously been given doctorauthorization to take such medications.51 Professional sports havebeen and continue to be a major influence on young adults, includ-ing college athletes.52 Many college athletes watch professionalathletes daily and aspire to make a career competing in sports.53

The desire and pressure to perform at professional levels in collegeand to maximize potential earnings leads many student-athletes to

47 Id. at 585. See also Pavisian, supra note 4, at 180–83.48 See David Leon Moore & Jim Corbett, Do Pro Sports Leagues Have an Adderall Prob-

lem?, USA TODAY SPORTS (Nov. 28, 2012), http://www.usatoday.com/story/sports/nfl/2012/11/27/adderall-in-pro-sports/1730431/ (explaining NFL player Garrett Hartley’s use in 2009).

49 D.J. Short, Chris Davis Opens Up About His Adderall Suspension, NBC SPORTS (Jan. 31,2015), http://mlb.nbcsports.com/2015/01/31/chris-davis-opens-up-about-his-adderall-suspension-it-was-a-moment-of-weakness/.

50 Id.51 Ken Rosenthal, Orioles’ Davis ‘Good to Go’ with New Therapeutic-Use Exemption, FOX

SPORTS (Feb. 24, 2015), http://www.foxsports.com/mlb/story/baltimore-orioles-chris-davis-suspension-therapuetic-use-exemption-adderall-022415.

52 See Tracy L. Ziemer, Study Says Kids Emulate Athletes, ABC NEWS (Oct. 13, 2000), http://abcnews.go.com/Sports/story?id=100296 (“Most kids surveyed believe it is common for sportsfigures to . . . use steroids or other banned substances to get an edge on the competition (52percent) . . . [and] many young athletes are nevertheless mirroring the example set by theirfavorite sports heroes.”).

53 Id.; Frank L. Smoll, Coaching and Parenting Young Athletes: Are Athletes Good RoleModels?, PSYCHOL. TODAY (Apr. 20, 2015), https://www.psychologytoday.com/blog/coaching-and-parenting-young-athletes/201504/are-athletes-good-role-models.



use the same performance enhancing methods that professionalathletes are using.54

F. Current NCAA Drug-Testing Policies and PreviousConstitutional Issues

College students cramming for exams or preparing for job in-terviews are not the only students that are misusing stimulants suchas Adderall.55 Widespread misuse of the drug has also been re-ported among NCAA student-athletes in order to enhance theirathletic performance.56 The NCAA’s drug regulations have andcontinue to indicate what a student athlete needs to do to be incompliance with such regulations.57 From giving a list of bannedsubstances, which includes steroids like HGH and amphetaminessuch as Adderall, and ineligibility provisions for the use of bannedsubstances, to detailing the medical exceptions and appeals pro-cess, the NCAA informs a student-athlete about the drug testingprotocols applicable to students participating in NCAA sponsoredathletics.58 Currently, the NCAA and its member schools share theresponsibility for testing student-athletes for PED use.59

Unlike in pre-collegiate athletic programs, such as highschools and all lower education levels, the NCAA performs its ownrandom drug tests in accordance with its own rules,60 without beingheld to be violating a person’s Fourteenth Amendment right to dueprocess.61 In NCAA v. Tarkanian,62 the Supreme Court held that“the NCAA was not a state actor and, therefore, not required toprovide Fourteenth Amendment due process to the men’s basket-

54 See Steroids Loom Large over Programs, ESPN (Dec. 20, 2012), http://espn.go.com/col-lege-football/story/_/id/8765531/steroids-loom-major-college-football-report-says (explainingthat players use steroids for many reasons including influence from others and for the purpose ofimpressing recruiters).

55 Stone, supra note 33.56 Id.57 2015-16 NCAA Drug-Testing Program, NCAA, http://www.ncaa.org/sites/default/files/

Drug%20Testing%20Program%20for%202015%20FINAL.pdf (last visited Nov. 22, 2015) (not-ing that these are revised annually).

58 Id.59 Id. See Frequently Asked Questions About Drug Testing, NCAA, http://www.ncaa.org/

health-and-safety/policy/frequently-asked-questions-about-drug-testing (last visited Nov. 29,2015).

60 2015-16 NCAA Drug-Testing Program, supra note 57.61 Diane Heckman, The Evolution of Drug Testing of Interscholastic Athletes, 9 VILL. SPORTS

& ENT. L.J. 209, 212–13 (2002).62 Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988).



ball coach employed by a state university, the University of Nevadaat Las Vegas.”63 The Tarkanian Court’s decision protected theNCAA’s drug-testing policies and procedures from committing andbeing prosecuted for violations of the Fourth Amendment right toprivacy.64 However, in O’Halloran v. University of Washington,65

student-athletes from the University of Washington brought a law-suit against the University claiming that the NCAA drug-testingprogram was violating the student-athlete’s Fourth Amendmentright, and was thus unconstitutional.66 Ultimately, the Washingtondistrict court decided that the NCAA was not “engaging in stateaction” and was within its rights to determine its own drug-testingpolicies.67

NCAA schools are expected to perform drug tests on theirown throughout the year, while the NCAA conducts testing specifi-cally at its championship events and other specified programswithin Division I and Division II.68 Under NCAA rules and regu-lations, the penalty for testing positive for PEDs is strict and auto-matic.69 If a student-athlete tests positive for PEDs, the student issuspended from competition for one full season and loses one fullyear of eligibility for the first offense.70 A second offense of testingpositive for PEDs results in the student-athlete being permanentlyineligible from competing in NCAA sponsored athletic events.71

However, many inconsistencies and conflicts of interest arise dueto a lack of uniformity and conformity among all NCAA collegesand universities.72 Because not all NCAA member schools have

63 Heckman, supra note 61. See Tarkanian, 488 U.S. at 199.64 Heckman, supra note 61, at 213.65 O’Halloran v. Univ. of Washington, 679 F. Supp. 997, 997–99 (W.D. Wash. 1988).66 Id. Heckman, supra note 61, at 213.67 Id.68 Id. See also Sharon Terlep, The NCAA’s Drug Problem, WALL ST. J. (Mar. 24, 2015),

http://www.wsj.com/articles/the-ncaas-drug-problem-1426792929 (last visited Dec. 19, 2015) (ex-plaining that “[Drug testing is] a school-by-school patchwork of policies and penalties: A first-time steroid infraction would bench a Florida player for half the season but cost a Texas A&Mplayer only a single game. Private schools such as Vanderbilt, meanwhile, aren’t required toshare their drug-testing policies with anyone, not even the NCAA.”); Matt Murshel, NCAALeaders Push to Stop Drug Testing, Suspensions at Championship Events, ORLANDO SENTINEL

(Oct. 18, 2015), http://www.orlandosentinel.com/sports/os-marijuana-football-changes-20151018-story.html.

69 2015–16 NCAA Drug-Testing Program, supra note 57.70 Id.71 Id.72 See Terlep, supra note 68; See also Murschel, supra note 68.



established their own institutional drug-testing programs,73 stu-dent-athletes at one school may not be getting tested as often asstudent-athletes at another school and the severity of the punish-ment can vary.74 Furthermore, even if an individual school estab-lishes its own testing program, not all schools are required to sharetheir drug-testing policies with the NCAA and there is a risk thatschools may potentially hide student-athlete PED infractions.75 Inaddition, certain prescription drugs that are considered PEDs,stimulants like Adderall, are not strictly banned like HGH andother performance enhancing substances.76 The NCAA allows stu-dents to become exempt for legally prescribed cognitive-enhancingdrugs.77 The NCAA does not require student-athletes to notify itof current prescription drug use unless a positive test is produced.78

Instead, athletes are required to tell the college institution’s medi-cal services and the institution is required to keep medical recordson file and report to the NCAA only in the event of a positive drugtest.79

In the event that a student-athlete fails an NCAA adminis-tered drug test and is not exempt, the NCAA drug-testing programallows an institution to appeal any suspension on behalf of a stu-dent-athlete.80 The appeal is heard by the NCAA Committee onCompetitive Safeguards and Medical Aspects of Sports(“CSMAS”).81 More specifically, appeals are conducted via tele-phone conference arranged by The National Center for Drug FreeSport (“Drug Free Sport”) for the NCAA and are presented to andvoted on by at least three members of the NCAA Drug-Educationand Drug-Testing subcommittee of CSMAS.82 The subcommitteeis comprised of multiple athletic and medical personnel from indi-vidual member institutions, with the Chair of the NCAA CSMAS

73 Eric Prisbell, NCAA Punishes Syracuse, Jim Boeheim for Violations, USA TODAY (Mar.6, 2015, 8:02 PM), http://www.usatoday.com/story/sports/ncaab/acc/2015/03/06/syracuse-college-basketball-ncaa-investigaton/24497089/ (providing an example of an institution that does have itsown drug-testing policies but failed to follow them).

74 See Steroids Loom Large over Programs, supra note 54 (explaining how not all schoolsdrug test as regularly as others and the times of examinations are rather predictable).

75 Id.76 2015–16 NCAA Drug-Testing Program, supra note 57.77 Id.78 Id.79 Id.80 Id.81 Id.82 Drug Testing Appeals Process, NCAA, http://www.ncaa.org/health-and-safety/policy/drug-

testing-appeals-process (last visited Oct. 15, 2015).



and “other designated members of the Committee” reserving theright to participate in the appeal.83 Furthermore, the NCAA DrugTesting Appeals Process does not call for complete anonymity ofthe college institution and student-athlete bringing the appeal, butinstead notes that the subcommittee “prefers not to know the iden-tity” of the parties involved.84

III. DISCUSSION

In the discussion below, this Note assesses the current NCAAdrug-testing procedures, specifically focusing upon the appeals pro-cess, and considers the pros and cons of its system. Furthermore,this discussion ties together the deep history and background ofPED use and drug-testing in college sports, and explains why theappellate process for reviewing disciplinary actions imposed onplayers should be modified.

A. The Fourth Amendment’s Role in Maintaining Fair Play andProtecting Student-Athlete Health

As previously mentioned, the Fourth Amendment right to pri-vacy and protection from searches and seizures has generally beenheld only to apply to the federal government and the states.85

Under the decision by the Court in O’Halloran,86 courts tend toconsider whether the “conduct occurred under the color of thestate law,” and whether “it deprived a person of a constitutionallyprotected right” when determining if there was state action.87 Typ-ically, the courts have considered publicly funded collegiate institu-tions to be state actors,88 but the NCAA to be a private entity of itsown.89 While the NCAA’s private entity status is generally pro-tected from “state-action doctrine,”90 there are exceptions.91 Forexample, in Arlosoroff v. NCAA:

83 Id.84 Id.85 See Tarkanian, 488 U.S. at 179; See also Pavisian, supra note 4, at 192.86 O’Halloran, 679 F. Supp. at 997–99.87 Id. at 1001.88 Tarkanian, 488 U.S. at 192.89 Arlosoroff v. Nat’l Collegiate Athletic Ass’n, 746 F.2d 1019, 1021 (4th Cir. 1984); See

Pavisian, supra note 4, at 192–93.90 Pavisian, supra note 4, at 192.



[A]n Israeli student at Duke University challenged the NCAA’sright to enforce an eligibility provision. The court held thatstate regulation of a private entity alone is insufficient to provestate action. What is required is a showing that the state, in itsregulatory or subsidizing function, ordered or caused the privateentity to perform an act traditionally reserved for the state.92

Following the decision by the court in Arlosoroff,93 the momentouscase of Hill v. NCAA94 arose in the California Supreme Court in1994. The court in Hill ultimately ruled that the NCAA was “not astate actor under the federal constitution. Furthermore, the courtfound that the NCAA policy gave the athlete advance warning ofthe test and opportunity to consent to it.”95 As a result of theCourt’s balancing of an NCAA athlete’s Fourth Amendmentrights, it has been determined that the NCAA’s drug-testing poli-cies and procedures were justified in preserving the integrity of col-legiate sports and protecting student-athletes physical and mentalhealth.96 However, if it is widely accepted that the NCAA’s drug-testing methods are vital to protecting fair play and player health,then should the drug-testing procedures not follow the same no-tion?97 The conflict of interest that is formed by allowing execu-tives of the NCAA and its member institutions to decide onappeals directly violates the idea of fair play that the courts aimedto achieve and are examined in the subsequent parts of thisDiscussion.

B. Sharing Drug-Testing Responsibilities Creates More Problemsthan it Solves

Because the NCAA and its member schools currently sharethe responsibility for testing student-athletes for PED use,98 it istoo difficult to regulate each student on a regular basis and holdanyone accountable. In fact, while the NCAA reserves the right to

91 Arlosoroff, 746 F.2d at 1021.92 Id. at 1021.93 Id.94 Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633 (Cal. 1994).95 Id. at 637–41.96 Id. at 637.97 The NCAA drug-testing protocol, specifically regarding the appeals process, creates an

unfair and prejudiced conflict of interest for the student-athlete as explained in infra sectionIII.D of this Note.

98 Frequently Asked Questions About Drug Testing, supra note 59.



perform random drug tests on any collegiate athlete, the NCAAgenerally performs tests on “star” players or on players who arecompeting in championship competitions for NCAA sponsoredevents.99 Meanwhile, NCAA member schools and universities areentitled and permitted to implement their own drug-testing proce-dures, policies, and penalties.100 Under the NCAA Drug Policies,if a school decides to implement its own drug-testing policies, itmust explicitly include substances on the NCAA’s banned list inaddition to its own.101

The problem of shared drug-testing responsibilities betweenthe member school and the NCAA is further permeated and ex-posed by the fact that the NCAA member school is generally bet-ter off when its players can compete in events.102 In this instance, aconflict of interest is formed as a result of the school wanting itsathletic programs to succeed, and thus there is a high likelihoodthat the institution will not report the results of a failed drug exam-ination103 to the NCAA and will indeed hide other violations anddeal with the matters internally.104

In fact, there have been a number of reported situations inwhich college coaches and other school athletic executives have in-tentionally hidden player infractions, drug related and non-drug re-lated, from the NCAA to better their athletic programs.105 Forexample, in 2011, the NCAA accused long-time Ohio State coachJim Tressel of “withholding information and lying to keep Buck-eyes players on the field who had accepted improper benefits. . . .[T]he NCAA alleged that Tressel had ‘permitted football student-

99 Id.100 Id.101 2015–16 NCAA Drug-Testing Program, supra note 57. See also Jon Solomon, NCAA Pe-

nalizes Oklahoma State for Violating Drug Testing Policy, CBS SPORTS (Apr. 24, 2015), http://www.cbssports.com/collegefootball/writer/jon-solomon/25161742/ncaa-penalizes-oklahoma-state-for-violating-drug-testing-policy.

102 See Rusty Miller, Jim Tressel Accused of Lying to Hide NCAA Violations, HUFFINGTON

POST: HUFFSPORTS (Apr. 25, 2011), http://www.huffingtonpost.com/2011/04/25/jim-tressel-ac-cused-ncaa-lying-hide-violations_n_853270.html (inferring that schools attempt to keep certainplayer violations hidden in order to avoid losing their top players to lengthy suspensions).

103 Prisbell, supra note 73 (exemplifying why and how Syracuse kept their drug-testing viola-tions quiet).

104 Solomon, supra note 101 (explaining that Oklahoma State failed to follow its own univer-sity drug-testing protocol, and allowed certain players to play in football games even though theywere technically suspended after violating the school’s revised drug-testing policy). See alsoRusty Miller, NCAA Alleges Tressel Lied to Hide NCAA Violations, USA TODAY: FOOTBALL

(Apr. 25, 2011), http://usatoday30.usatoday.com/sports/college/football/2011-04-25-2614547534_x.htm.

105 See Miller, supra note 104; Solomon, supra note 101; Prisbell, supra note 73.



athletes to participate in intercollegiate athletics while ineligible . . .[and] failed to deport himself . . . (with) honesty and integrity.’”106

More recently, in 2015, the NCAA penalized Oklahoma State forviolating the NCAA Drug-Testing Policies and the schools ownpolicies.107

The NCAA found that five Oklahoma State football playersparticipated in a total of seven games from 2008-12 when theyshould have otherwise been withheld due to Oklahoma State’sdrug-testing policy.

The NCAA requires that if a school has a policy, it must includesubstances on the banned list and schools must follow its policy.From 2007 to 2011, Oklahoma State’s drug testing policy statedcounseling would occur for a player after the first positive test, a10-percent suspension of the season after the second positive,and a 50-percent suspension of the season after the thirdpositive.108

The fact that “Oklahoma State coach Mike Gundy ‘admitted hewas “guilty” of making decisions that contravened the institution’sinitial drug testing policy’” further shows a lack of an organizedmethod of testing and imposing penalties on players, in addition toa difficulty in holding any one specific person culpable.109 All inall, the incidents at Ohio State, Oklahoma State, and Syracusehighlight the fragments of a broken system of sharing drug-testingresponsibilities and why the conflict of interest of having sharedresponsibilities tend to lead to more complex tribulations that re-main unanswered and unresolved by the NCAA’s currently imple-mented policies.

More recently, the NCAA imposed sanctions against SyracuseUniversity.110 In March 2015, the NCAA determined that the Syr-acuse Men’s Basketball program was in violation of committing ac-ademic misconduct, receiving illegal benefits, and seriousinfractions of the schools drug-testing policy.111 More specifically,it was determined that the program had staff members completingcourse work for students, and though not required by the NCAAto implement its own drug-testing policies, the program failed toenforce the one it had implemented at the time of the infrac-

106 Id.107 Solomon, supra note 101.108 Id.109 Id.110 Prisbell, supra note 73.111 Id.



tions.112 “[F]rom 2001 to early 2009 [the program] at times failedto follow the written terms of the program regarding players whotested positive for marijuana.”113 Consequently, the NCAA doesnot tend to punish school’s athletic programs lightly. For example,the NCAA suspended Syracuse head basketball coach JimBoeheim for nine games.114 As a result, the NCAA forced Syra-cuse to eliminate twelve total scholarships, and forced the programto return all of the money it had received from the Big-East Con-ference revenue-sharing.115

C. Exemption Procedure for Permitted Drug Use NeedsTo Be Regulated Better

The NCAA, like Major League Baseball (“MLB”) and theNational Football League (“NFL”) currently allows athletes to beexempt for using Adderall.116 Although Adderall and similar cog-nitive enhancing drugs are technically considered banned from useby student-athletes,117 the NCAA recognizes that there are stu-dent-athletes who do suffer from the types of cognitive problemsthat these specific drugs are medically intended to be used for, andsome allowance is necessary.118 The NCAA permits students to beexempt from violations for using cognitive PEDs, but only forthose athletes who are legally prescribed the drug for coping withthe daily effects of ADD or ADHD.119 This exemption is an easyway for student-athletes to continue an established medication reg-imen without being held in violation of the NCAA drug-testingpolicies.120

A problem with the exemption policy arises when student-ath-letes, much like professional athletes, begin to take advantage ofthe NCAA’s leniency.121 For those athletes, collegiate or profes-sional, who have purposely sought out a doctor to prescribe them

112 Id.113 Id.114 John O’Brien, NCAA Report: Jim Boeheim Suspended For Nine Games; 12 Scholarships

Lost Over Four Years, SYRACUSE.COM (Mar. 23, 2015), http://www.syracuse.com/orangesports/index.ssf/2015/03/ncaa_penalizes_syracuse_basketball_for_rules_violations.html.

115 Id.116 2015-16 NCAA Drug-Testing Program, supra note 57.117 Id.118 U.S. FOOD AND DRUG ADMIN., supra note 22.119 2015-16 NCAA Drug-Testing Program, supra note 57120 Id. (explaining the purpose of the therapeutic use exemption).121 Stone, supra note 33.



Adderall to enhance and improve their athletic abilities duringcompetition, this method has been seen as a loophole for improv-ing and enhancing their athletic ability and avoiding lengthy sus-pensions while gaining societal acceptance rather than criticism.122

For instance, in 2012, at least ten players in the National FootballLeague were linked to Adderall and other stimulants, although it isdifficult to confirm.123

The NFL, by virtue of a confidentiality provision in its contractwith the NFL [players] union, never discloses the substance in-volved in a violation. That has led to suspicions that in someinstances, players or their representatives claim Adderall use be-cause there is less stigma attached to an amphetamine with anacknowledged medical purpose than to other banned sub-stances, such as anabolic steroids.124

By giving athletes an opportunity to use such banned substancesduring competition, the line between “banned substances” and “ac-ceptable PED substances” has become blurred with ADD medici-nal drugs.

While professional sports leagues, such as the NFL, MLB,NBA, and NHL, have one governing body that oversees and keepstrack of all of the drug-testing examinations performed and exemp-tions that are filed, the NCAA relies on member institutions tocollect, verify, and file all documentation necessary for a student-athlete to become exempt.125 Thus, the NCAA does not requirestudent-athletes to notify them of current prescription drug use,but instead the NCAA will request the documentation, if any, upona student-athlete’s failed exam.126 Although largely out of the uni-versities’ control, many students, especially those who also partici-pate in collegiate sports, are getting themselves diagnosed withADD so that they can legally use Adderall in accordance withNCAA regulations. Due to light regulations by doctors, and theNCAA’s informal and permeable exemption process for usingbanned prescription drugs, the exemption policy has turned whatwas once meant to be a tolerable use but strict regulation of cogni-

122 Id.123 Id.124 Id.125 2015-16 NCAA Drug-Testing Program, supra note 57.126 Id.



tive enhancing drugs into an easy method for gaining a competitiveadvantage without any repercussions or shame attached.127

D. Arguments Against the Current NCAA Appeals Process

Student-athletes who test positive for Adderall and are deter-mined to have not been appropriately exempt can appeal to theNCAA CSMAS.128 However, “[a]t least three members of thedrug-education and drug-testing subcommittee of the NCAA Com-mittee on Competitive Safeguards and Medical Aspects of Sports. . . hear appeals.”129 As set forth below, the fact that members ofthe CSMAS hear and determine the outcome of the appeal createsa blatant conflict of interest and an unfair process for the student-athlete who is appealing the original disciplinary action.

Much like the conflict of interest regarding appeals for NFLplayer discipline that has been publicly ridiculed of late, the con-flict of interest that exists with the NCAA CSMAS appeals is fairlysimilar in principle.130 During the 2014–2015 NFL Playoffs, theNew England Patriots were accused of deflating footballs duringgames in violation of NFL rules and regulations in place to main-tain the fairness and integrity of the game.131 After Tom Brady(“Brady”) was originally suspended for four games by an NFL Ex-ecutive who was appointed by Commissioner Goodell, Brady ap-pealed his suspension, only to have his appeal heard by theCommissioner himself.132 In the case of Brady, publicly known as“Deflategate,” the conflict of interest surfaced when the originalpunishment given to Brady was approved by Commissioner Good-ell (although technically sanctioned on Brady by someone else)and then Goodell was able to rule on the appeal, which was sure tobe biased in favor of the original ruling.133

127 Stone, supra note 33 (explaining that athletes choose Adderall because it causes an in-crease in “alertness, aggressiveness, attention and concentration” and do not have to feel badabout it if they have a therapeutic use exemption).

128 NCAA Drug Policies: For Your Health and Safety, NCAA, http://catawba.edu/files/3514/0777/8873/NCAADrugPolicies.pdf (last visited Sept. 28, 2015).

129 Id.130 Ryan Wilson, Roger Goodell Hears Tom Brady’s Deflategate Appeal: 4 Things to Know,

CBS SPORTS (Jun. 23, 2015), http://www.cbssports.com/nfl/eye-on-football/25222569/roger-goodell-hears-tom-bradys-deflategate-appeal-3-things-to-know.

131 Id.132 Id.133 Id.



Similarly, the NCAA CSMAS, which is an NCAA association-wide committee, is comprised of multiple athletic and medical per-sonnel from individual member institutions, with the Chair of theNCAA CSMAS and “other designated members of the Commit-tee” reserving the right to participate in the appeals,134 listen, andrule on college athletes’ appeals of disciplinary conduct that issanctioned by the NCAA—the very same governing body that isresponsible for both the enforcement of the drug-testing policies(including the penalties), and the creation and maintenance of theCSMAS subcommittee.135 Furthermore, the specific members ofthe CSMAS consist of athletic directors, trainers, and team physi-cians from different NCAA member institutions.136 For example,Randy Bird, Director of Sports Nutrition at the University of Vir-ginia, and Larry Bowman, Team Orthopaedic Surgeon at ClemsonUniversity, are both members of the CSMAS.137 Additionally, notonly would every member on the CSMAS who works for one par-ticular institution have a conflict of interest with each other due tothe inherent nature of competition, but another conflict of interestarises due to the fact that some of the members of CSMAS areagents of universities that are in the same athletic conference aseach other.138 For instance, Bird and Bowman work for differentschools that play in the Atlantic Coast Conference.139

IV. PROPOSED INDEPENDENT ARBITRATION SYSTEM TO

SUPPLANT THE CURRENT NCAA COMMITTEE ON

COMPETITIVE SAFEGUARDS AND MEDICAL

ASPECT OF SPORTS

Having examined the use of CEDs by college athletes in theNCAA and the appeals process they are forced to endure to com-bat any sanctions, this Note proposes the use of alternative disputeresolution, specifically a panel of independent arbitrators, as ameans to determine student-athletes’ appeals for PED related sus-pensions. More specifically, the NCAA and its student-athleteswould benefit from designing and implementing its own arbitration

134 Drug Testing Appeals Process, supra note 82.135 Id.136 Id.137 CSMAS Committee Roster, NCAA, http://web1.ncaa.org/committees/committees_roster

.jsp?CommitteeName=SAFEGUARDS (last visited Jan. 20, 2016).138 Id.139 Id.



panel using the MLB Drug Program and the Court of Arbitrationfor Sport (“CAS”) as a model for its arbitral body. It is clear thatallowing the current NCAA self-created committee, the CSMAS,to solely hear and determine appeals is unfair to college athletesand universities, as it allows high-level executives who run theNCAA, as well as athletic directors, athletic trainers, and physi-cians from a variety of NCAA member schools to listen to anddecide on the student-athletes’ appeal.140 Implementing an inde-pendent arbitration system to handle the NCAA appeals processguarantees the use of a system that is designed specifically forPED-related issues and will help to improve the goal of providing afair process for those student-athletes who were found to haveused a PED, and were suspended as a result of that use. Utilizing abinding arbitration system will provide a timely and final resolutionto any PED offenses, specifically Adderall and other CED relateddisputes. Furthermore, it will help protect the integrity of col-legiate sports in the United States by ensuring that appeal hearingsare unbiased and not influenced by the details of scheduled col-legiate competitions, such as the participating teams.

Arbitration is gaining popularity in many different fields oflaw, and sports law is no exception to the handling of disputes be-tween an athlete and the sports governing organization.141 In fact,Major League Baseball incorporates the use of an independent ar-bitrator into its Drug Prevention Program. In order to eliminate,or at the very least diminish, any possibility of a conflict of interestarising during the appeals process, the NCAA should utilize apanel of arbitrators when hearing student-athlete appeals. Alter-native Dispute Resolution methods, specifically arbitration, areeffective.

For example, the appeal of Ryan Braun’s suspension for alleg-edly using steroids went to the tripartite arbitration panel.Under the MLB’s Drug Prevention Program, a player has theright to appeal a suspension to a three-person panel, which iscomposed of a neutral arbitrator, an arbitrator appointed by theleague, and an arbitrator appointed by the players association.The inherent problem with this system, and a problem that theproposed hybrid system attempts to avoid, is that the Braun de-

140 Drug Testing Appeals Process, supra note 82.141 In sports, the governing organization and its athletes generally want to keep as much

peace as possible and use arbitrators and mediators to avoid costly, malicious, and futile negotia-tions or lawsuits. See What is Arbitration?, MEDIATE, http://www.mediate.com/articles/grant.cfm(explaining that “[t]he object of arbitration is to obtain a fair resolution of disputes by an impar-tial third party without unnecessary expense or delay.”).



cision, and the vast majority of other decisions, was a two to onedecision, with the neutral arbitrator casting the deciding vote.142

Ultimately, in the case of Ryan Braun, the arbitrator appointed bythe league ruled in favor of the league, and the arbitrator chosenby the players association ruled in favor of the athlete.143 Becausethe kind of voting witnessed in the case of Ryan Braun is morelikely than not to repeat itself in every instance, it is clear that theneutral arbitrator’s vote during the appeals process will generallybe the determination of the appeal and consequently, is the onlyone that matters.144 Therefore, the hybrid mix of using NCAA ex-ecutives, and athletic directors, trainers and team physicians ofother NCAA member universities would cause a similar outcomein arbitration voting as the one seen in Ryan Braun’s appeal, thusrendering the neutral independent arbitrator’s vote to be moremeaningful and necessary when the process is all said and done.145

Building off of the example detailed and described above, it isclear that another potential problem that will arise is the selectionprocess utilized for choosing arbitrators for the panel. It is highlyunlikely that the NCAA will be able to select arbitrators in a fairand unbiased manner that will mutually benefit all parties to theappeal and disciplinary review. Unlike the MLB, NFL, NBA, andNHL, there is no players union in existence for college athletes,which makes it impossible to replicate the hybrid scheme designedand employed by the MLB. The lack of a collective bargainingagreement also means that student-athletes have no control overwho hears their appeals. It is for this reason that the NCAA mustadopt the CAS for all appeals regarding NCAA drug-related of-fenses. The Court of Arbitration for Sport is a sport-specific arbi-tral body that was created in 1981 by then-President of theInternational Olympic Committee (“IOC”), Juan AntonioSamaranch.146 The CAS was created as a result of the increasingnumber of sports-related disputes, specifically disciplinary issues,and the absence of an impartial body capable of hearing and ruling

142 Adriano Pacifici, Scope and Authority of Sports League Commissioner Disciplinary Power:Bounty and Beyond, 3 BERKLEY J. ENT. & SPORTS L. 93, 114 (2014); See Jason M. Pollack, TakeMy Arbitrator, Please: Commissioner “Best Interests” Disciplinary Authority in ProfessionalSports, 67 FORDHAM L. REV. 1645, 1706 (1999).

143 Pollack, supra note 142.144 Id.145 Id.146 Matthieu Reeb, The Court of Arbitration for Sport, TAS/CAS, http://www.tas-cas.org/en/

general-information/history-of-the-cas.html (last visited Mar. 1, 2016).



on such issues.147 Cases that are brought to the CAS are eitherresolved by one arbitrator or by a majority vote of a three-personpanel.148 Furthermore, arbitrators used by the CAS must sign fair-ness declarations and are bound by the duty of confidentiality toensure that individual cases are handled with extreme care.149

Implementing this system would involve the NCAA insertinga mandatory arbitration clause for all requested appeals for PED-related suspensions into the NCAA Drug-Testing Program and allNCAA student participation agreements. Once this clause is in-serted, the newly formed arbitration panel will have full jurisdic-tion to review any determination that a player has violated theNCAA Drug-Testing Program. Should a student-athlete and insti-tution exercise their right to appeal a suspension, the final decisionwould be binding upon all parties. Any costs of the arbitrationhearing would be on the university to which the suspended athleteis a member. Because a student-athlete’s suspension is to the uni-versity’s benefit or detriment, and the university generally hasmore access to and knowledge of a student-athlete’s medical his-tory, the university can determine whether initiating an appeal iswarranted.

The existence of this new panel would promote change andfairness to the current system in place, including to many of theprocedural steps leading up to the appeal. To initiate an appeal,the student (or the university on behalf of the student) would filethe appeal directly to the arbitration appeals board rather than tothe NCAA. However, the student would be required to providenotice to the NCAA detailing the precise nature of his or her ap-peal. Once the appeal has been filed, the appeals board will beassembled according to the type of instance. One arbitrator maybe selected who is also an NCAA executive. This is designed toensure that NCAA policies and drug regulations are followed andnot over-looked. The other two arbitrators will be neutral arbitra-tors from the CAS.

However, it is not enough for the NCAA to oblige and amendits policies to utilize professional independent arbitrators from atrusted nationally and internationally recognized association. Thearbitrators should be screened prior to their election to this newtype of appeals board to ensure that all aspects of “fair play” are

147 Id.148 Id.149 Id.; See Courtney Lotfi, Doping, Athletes, and Arbitration A Case Study on the Need for

Transparency in the System, 2 U. DENV. SPORTS & ENT. L.J. 1, 15 (2006).



met. All in all, the arbitrators that are selected would be responsi-ble for hearing and deciding on all appeals made by student-ath-letes and membership organizations to the NCAA regarding afailed drug examination, testing protocols, and any sanctions thatmay have been imposed upon the player.

V. CONCLUSION

The NCAA’s current process of review for disciplinary ac-tions, specifically regarding suspensions for PED use, is flawed.While Adderall and other cognitive enhancing drugs are certainlynot the only PEDs that college athletes are using illegally, theirpresence among college student-athletes is larger than it has beenand is leading to many more suspensions among NCAA athletes.150

While implementing an independent arbitration system for hearingappeals may be more costly for the NCAA than the system alreadyin place, the NCAA and its member schools can afford to hire anindependent arbitrator.151 Furthermore, the financial burden willbe completely overshadowed by the increased fairness in the pro-cess for student-athletes and an increased level of integritythroughout the NCAA and U.S. collegiate sports.152

150 See Steroids Loom Large over Programs, supra note 54 (explaining that PED use contin-ues to rise because the NCAA drug-tests are precdictable and are not conducted as often as onemight think).

151 See NCAA Consolidated Financial Statements, NCAA, http://www.ncaa.org/sites/default/files/2014-15NCAA_Financial_Statement.pdf (providing consolidated financial statements pre-pared by Deloitte & Touche LLP that show that the NCAA achieved a total revenue of approxi-mately $900 million). See also NCAA Finances, NCAA, http://www.ncaa.org/sites/default/files/2015-16_Revenue_Distribution_PlanFinal.pdf.

152 Id. (stating that financial reports also show money that has been set aside for potentiallawsuits and other miscellaneous expenses).

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