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DRUG TESTING OF ATHLETES.
Term Paper ID:21603
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Essay Subject:
Legal analysis. Mandatory tests, privacy rights, 4th Amendment issues, state vs. federal conflict, urinalysis, court decisions.... More...
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7 Pages / 1575 Words
20 sources, 24 Citations,
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Paper Abstract:
Legal analysis. Mandatory tests, privacy rights, 4th Amendment issues, state vs. federal conflict, urinalysis, court decisions.
Paper Introduction:
Drug Testing of Athletes and the Law
This paper will discuss the legal issues involved in the mandatory drug testing of athletes. The first part of the paper will examine the issue of state action with regard to federal constitutional protections. The second part of the paper will discuss the privacy issues arising out of the Fourteenth Amendment. The third part of the paper will look at the issue of search and seizure under the Fourth Amendment. The last part will briefly discuss state constitutional law concerning privacy.
The controversy over the mandatory testing for drugs in sports concerns both types of athletes, professional and amateur. As will be seen, courts have treated professional athletes as employees who have agreed to forego certain rights, since they have signed employment contracts which often provide for drug testing. Amat
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833 (N.D. At issue in drug testing cases is whether an individual has a rightto privacy primarily with regard to urinalysis. NCAA & LouisianaState University, No. Handel,[13] where jockeys sued the New Jersey racing commission over arule which required all jockeys to submit to drug tests. There has been much litigation under this theory of drug testing in theworkplace. T.L.O., 469 U.S. 1988).Schaill v. 113 (1973).Schaill v. deprive any person of life, liberty or property,without due process of law ...." Thus, the protections of the FourteenthAmendment usually do not apply to private conduct. 131, 137 (1991). at 2 ; Palmer, Drugs vs.Privacy: The New Game in Sports. Drug Testing of Athletes and the Law This paper will discuss the legal issues involved in the mandatorydrug testing of athletes. Ohio, 392 U.S. Amateur athletes, on theother hand, represent a special situation, since most are nominally underthe control of schools and they have not promised to play in return forconsideration. Ind. Supp. 86-5697, slip op. CasesBarbay v. [17]469 U.S. 4th 1 (1994).Meyer v. This result has also been reached inCalifornia, under the privacy guarantee of the California stateconstitution. Even when a state university requiressuch testing, the action is not that of a governmental entity if the schoolis following the rules of an intercollegiate association. The court noted thatparticipation in athletic programs was a privilege, not a right, and wasentirely voluntary. 1 (1968). Champion, Jr., Fundamentals of Sports Law §21.5 (199 ). 454 (1988).New Jersey v. Sports L.J. [13]795 F.2d 1136 (3d Cir. [24]Id. This right has also been articulated as the"right to be let alone," and has been the cornerstone of Supreme Courtdecisions such as Eisenstadt v. NCAA & Louisiana State University, No. Tippecanoe County School Corp., 679 F. [3]Schaller, supra note 1, at 138. This diminishedexpectation is overcome by the NCAA's need to safeguard the integrity ofcollege sports and to protect the health and safety of the athletes.[24] In conclusion, the drug testing of athletes will usually be found tobe constitutional under the U.S. Rochester: The Lawyers Co-operative Publishing Co., 199 .Covell, Kerrie S., & Annette Gibbs. L. Intercollegiate associations do notqualify as governmental entities either. Handel, 795 F.2d 1136 (3d Cir. 18 Journal of College and University Law 131-61 (1991). [11]See, e.g., Meyer v. This question must beframed as whether an individual has a reasonable expectation of privacy inhis or her urine in the context of a urinalysis. [2 ]Cal. [8]41 U.S. 24 (198 ). [5]See, e.g., Dennis v. 1988), aff'd, 864 F.2d 13 9 (7th Cir. [2]NCAA v. 438 (1972). Wade, 41 U.S. Consequently, mandatory testing of amateur athletes tendsto constitute a greater infringement of certain personal rights than doesmandatory testing of professional athletes. Constitution. 833 (N.D. In Hill v. 1988).Shoemaker v. 2 Marquette Sports Law Journal 175-2 9 (1992).Schaller, William Lynch. 113 (1973). Bibliography Books and ArticlesChampion, Jr., Walter T. Society of Sisters, 268 U.S. [4]See, e.g., Burton v. A jockeyunder the influence of drugs cannot perform to his maximum capability, thusdefrauding the public and endangering the other jockeys in the riskiest ofall athletic professions.[14] In T.L.O.[15] the Supreme Court held that a warrant was not requiredfor searches of the property of school children by school administrators,since the burden of obtaining a warrant would likely frustrate thegovernmental purpose behind the search. of C. Tippecanoe County School Corp., 864 F.2d 13 9 (7th Cir.1988). In these cases, it islikely that the school policies will be considered state action undertakenby state actors. The third part of the paper will look at theissue of search and seizure under the Fourth Amendment. (E.D. 15, 1987), cited inCovell & Gibbs, Drug Testing and the College Athlete, 23 Creighton L. 438 (1972).Hill v. [12]Ludd, supra note 1 , at 613-616. Rev.1, 1 (1989). 39 (1923); Pierce v.Society of Sisters, 268 U.S. [9]Schaill v. In addition, the students were fully informed of themanner of the tests and were required to sign a form which indicated theirconsent to the tests. 325 (1985). In one case, however, a federal court ofappeals held that a high school athlete's right to privacy was notinfringed where the athlete produced the sample in a private stall while amonitor stood outside listening for the appropriate sounds of urination.The court noted that participants in interscholastic athletic programs hada diminished expectation of privacy with regard to urination on account ofthe locker room atmosphere. Tippecanoe County School Corp., 864 F.2d 13 9 (7th Cir. 599 (1991). Constitution. These factors contributed to the needfor public confidence in the sport's integrity and legality. art. Sparks, 449 U.S. Several state constitutions guarantee a right ofprivacy, in a fashion similar to that of the U.S. [14]Id. Wade.[8] The right ofprivacy is a right which is fundamental and provided the highest protectionby the Constitution. 1986). Jan. Connecticut, 3 2 U.S. Thus, professional athletes willprobably not receive any federal constitutional protection, while collegeathletes will only receive protection if the drug testing was mandated by agovernmental entity. The school could withdraw from theNCAA at any time and many private schools belong to the NCAA.[2] On theother hand, the decision in Tarkanian may not completely shieldinterscholastic athletic organizations from federal constitutionalchallenges.[3] A private actor can become a state actor by entering intocontractual or other legal relationships with public entities,[4] or"conspiring" with public actors.[5] Consequently, the main instances where a federal constitutionalchallenge can be mounted are where individual state schools have institutedpolicies requiring drug testing of their athletes. [23]Id. [15]469 U.S. [19]Id.; see also, W.T. La. Tarkanian, 488 U.S. In order for any federal constitutional protection to be triggered,there must be some action on the part of the government or a publicauthority.[1] This is a major problem in athletics and is the reason sofew cases involving the mandatory testing for drugs have been brought infederal courts. First, does an individual have a privacy interest inthe bodily fluids which must be withdrawn in order to conduct a test?Second, does testing violate an individual's Fourth Amendment right to befree from unreasonable searches? The Court articulated a two-parttest to determine reasonableness. Second, the court "must determine whether thesearch as actually conducted 'was reasonably related in scope to thecircumstances which justified the interference in the first place.'"[17]The major case in this area has been Schaill.[18] In that case, the courtheld that the program was indeed a search which came under the purview ofthe Fourth Amendment, but the search was reasonable. L.J. Schaller, Drug Testingand the Evolution of Federal and State Regulation of IntercollegiateAthletics: A Chill Wind Blows, 18 J. Const. Where the Fourth Amendmentis triggered, courts have generally been inclined to find that drug testingis permitted, since the athletes' privacy interests rarely outweigh thestate interests in testing. However, there is also a separate right toprivacy under the Constitution, emanating from the Fourth, Fifth, Ninth,and Fourteenth Amendments. Ind. It is generally assumedthat a person does have a privacy interest in connection with the act ofurination, since urine is a bodily fluid and the act of urination isusually conducted in private. ----------------------- [1]The Due Process Clause of the Fourteenth Amendment states that"[n]o State shall ... 24 (198 ).Eisenstadt v. This has been an exception to the usual requirements ofindividualized suspicion or a search warrant. The last part willbriefly discuss state constitutional law concerning privacy. 325 (1985).Palko v. 15, 1987).Burton v. The court ruledin favor of the state, emphasizing the highly regulated nature of horseracing and the presence of wagering. at 341, citing Terry v. at 1144. Connecticut, 3 2 U.S. 1988), aff'd, 864 F.2d 13 9 (7th Cir.1988). Drug Testing and the Evolution of Federal and State Regulation of Intercollegiate Athletics: A Chill Wind Blows. 715 (1961).Dennis v. Supp. Ohio, 392 U.S. The test for eliminating thewarrant requirement is reasonableness. Tarkanian, 488 U.S. The first matter would be to determine whether the rightat issue was a fundamental one, or one which is "implicit in the concept ofordered liberty."[11] If it is, then the government must show that thereis a compelling state interest which supersedes the fundamental right ofthe individual. 2 Marq. Wilmington Park Auth., 365 U.S. Jan. There was an element of communal undress andthe physical examinations which are integral to almost all athleticprograms required athletes to provide urine samples for medical tests. Baird, 4 5 U.S. [6]New Jersey v. at 341, citing Terry, 392 U.S. Drugs vs. 51 (1925); Palko v. Such notice of the tests diminished the subjectiveintrusiveness of the tests. Fundamentals of Sports Law. 34 Howard Law Journal 599-632 (1991).Palmer, Charles A. 454 (1988); Barbay v. Nebraska, 262 U.S. (E.D. La. T.L.O., 469 U.S. For instance, theCalifornia Constitution guarantees the right of privacy,[2 ] and the NCAArules requiring drug tests for college athletes have been challenged underthis provision. 23 Creighton Law Review 1-18 (1989).Ludd, Steven O. Athletics, Drug Testing and the Right to Privacy: A Question of Balance. I, § 1. NCAA, 7 Cal. The precedent for this was a Supreme Court case whichinvolved the search of a student's purse by a public high school teacher.The Court readily accepted the contention by the student that the actionwas a state action.[6] The potential right of privacy affects the right to be free fromunreasonable searches, since the individual must have a privacy interest inthe thing being searched. 86-5697, slip op. and U. NCAA,[21] the California Supreme Court heldthat the privacy guarantee of the state constitution extended to actions byprivate individuals and organizations.[22] It then held that privacyrights will depend upon the context in which they arise, and that they maybe overridden by legitimate and important competing interests.[23]Applying this balancing test to the NCAA drug test rules, the Court foundthe rules to be constitutional. It has been suggested that such a case could be made, outside ofthe usual Fourth Amendment protection against unreasonable searches andseizures.[1 ] This would require the due process analysis developed overthe past century. at 38-4 . [22]Id. The first part of the paper will examine theissue of state action with regard to federal constitutional protections.The second part of the paper will discuss the privacy issues arising out ofthe Fourteenth Amendment. 1, 2 (1968). The controversy over the mandatory testing for drugs in sportsconcerns both types of athletes, professional and amateur. [21]7 Cal. This was echoed in Shoemakerv. Nebraska, 262 U.S. Baird,[7] and Roe v. at 41-55. [7]4 5 U.S. There are three main areas of concerns which are affected by drugtesting in general. Allof these circumstances reduced the expectation of privacy with regard tourinalysis.[9] There is no specific case concerning the application of the right ofprivacy under the federal Constitution to the case of drug testing ofathletes. Privacy: The New Game in Sports. 715 (1961). 4th 1 (1994). College athletes have a diminishedexpectation of privacy because their physical and medical conditions arefrequently scrutinized by coaches, trainers, and others. [16]469 U.S. 175, 188-89 (1992). at 15-2 . In this case, the governmental interest would be theprotection of the public welfare, in the guise of the protection of theathletes' health and welfare or the reputation and integrity of thesport.[12] The most common approach through which drug testing is challenged isthe Fourth Amendment protection against unreasonable searches and seizures. Theseprotections may extend to the actions of private individuals andorganizations, as well as governmental entities. [1 ]See Ludd, Athletics, Drug Testing and the Right to Privacy: AQuestion of Balance, 34 How. There are no cases which have considered the issue ofthe right of privacy under the Bill of Rights. 39 (1923).NCAA v. 325 (1985). Wilmington Park Auth., 365 U.S. The only cases where theprovisions of the Bill of Rights will be triggered are where there is agovernmental entity taking action. First, the court must "consider 'whetherthe ... Therefore, the government interests inmaintaining a drug-free environment in high school sports and preventingthe possibility of harm to other participants outweighed the intrusion onthe athletes' privacy interests.[19] Athletes may have some recourse under state constitutional law tochallenge drug testing. In general, the mandatory drug testing of public employees hasbeen held to be reasonable in cases where there was a legitimate publicsafety need. [18]679 F. Rules requiring the drug testing of professional athletesinvolve no governmental action. As will beseen, courts have treated professional athletes as employees who haveagreed to forego certain rights, since they have signed employmentcontracts which often provide for drug testing. Drug Testing and the College Athlete. Third, might such testing violateprovisions of state constitutions, especially with regard to privacy? 319(1937). 319 (1937).Pierce v. Thus, for example, rules enactedby the NCAA requiring the drug testing of athletes are not subject tofederal constitutional challenge. The adoption ofthe NCAA rules by a state school does not transform the rules into staterules or the NCAA into a state actor. 51 (1925).Roe v. Sparks, 449 U.S. action was justified at its inception,'"[16] balancing thegovernment's interest in conducting the search against the intrusion intothe individual's privacy. 1986).Terry v.
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