phillips & hunt Procedures and Processes
Florida quarterback Will Grier has been suspended one year for violating the NCAA’s policy on performance-enhancing drugs. The suspension will run one year through October 12, 2016, and will cover at least 13 games. It not only ends his season this year, but will derail the start of next year, thus essentially derailing his college football career.
The NCAA’s policies, procedures, testing and appellate process is more detailed than you’d ever want to know, but as I spent some time researching it today, I decided to create a blog outlining the complete NCAA drug testing process and appeal.
Each year, the NCAA issues a book called the “Drug Testing Program.” Before it even gets to the first page, the NCAA admonishes in brightly colored letters:
There and, again, on page 2, the NCAA explains it bans the following classes of drugs:
- Anabolic agents;
- Alcohol and beta blockers (banned for rifle only);
- Diuretics and other masking agents;
- Street drugs;
- Peptide hormones and analogues;
- Anti-estrogens; and
- Beta-2 agonists.
- Any substance that is chemically related to these classes is also banned. The institution and the student-athlete shall be held accountable for all drugs within the banned drug class regardless of whether they have been specifically identified.
It states that there is no complete list of banned substances. The NCAA also issues a stern warning on page 2 and puts a burden on college athletic departments to not only explain, but enforce the rules:
It continues on page 3 with yet another notice to athletic directors and student-athletes. Don’t take anything without consulting the athletics department staff:
It is reinforced yet again on page 4, with a timeline of reminders student-athletes should get. It’s made to be abundantly clear that (1) every student-athlete should seek permission before they take anything and (2) the NCAA doesn’t accept ignorance or negligence as an excuse.
By page 5, the NCAA finally discusses its drug testing polices and procedures. It states, “The program involves urine collection and laboratory analyses for substances on a list of banned-drug classes developed by the NCAA Executive Committee.”
It mandates that every student-athlete sign a release form prescribed by the Committee on Competitive Safeguards and Medical Aspects of Sports in which the student-athlete consents to be tested for the use of substances banned by the NCAA. Student-athletes competing in Divisions I and II sports are subject to year-round testing. Student-athletes may be selected for testing on “the basis of sport, position, competitive ranking, athletics financial-aid status, playing time, directed testing, an NCAA-approved random selection or any combination thereof.” The NCAA gets wild discretion.
The director of athletics or his or her designee is required to provide an accurate and current eligibility list or squad list to Drug Free Sport for student-athlete selections. Drug Free Sport is then tasked to send notifications to the director of athletics, director of compliance and site coordinator not earlier than two days before the day of testing.
The student-athlete is then either notified in person or by direct telephone communication of the date, time to report and location of the testing event, or an institutional representative is present in the collection station to certify the identity of student-athletes, assist with security of the collection station, and remains in the testing station until testing has been completed.
The student-athlete selects a sealed beaker from a supply of such and attaches a unique bar code to the beaker. The student-athlete must rinse and dry his or her hands and then the collector monitors the furnishing of the specimen by observation in order to ensure the “integrity of the specimen.” The student-athlete must keep the collection beaker closed and controlled and the beaker must be filled as noted (at least 90 mL). There are other requirements about “specific gravity” and other things we will skip, but the process is extremely detailed and controlled.
The collector then pours at least 60 mL of the specimen into the “A” vial and at least 25 mL into the “B” vial in the presence of the student-athlete. Everything is then sealed and signed and sent for processing. The laboratory uses a portion of sample “A” for its initial analysis.
For student-athletes who have a positive finding of sample “A,” Drug Free Sport calls the director of athletics or his or her designee to inform them. Drug Free Sport advises the director of athletics or his or her designee by telephone that sample “B” will then be tested and the institution and/or the student-athlete is given the option to be represented at the laboratory for the opening of sample “B.” The testing of sample “B” findings is final. The laboratory will inform Drug Free Sport of the results. For student-athletes who have a positive sample “B” finding, Drug Free Sport will contact the director of athletics or his or her designee. The institution shall notify the student-athlete of the finding. At this point, normal NCAA eligibility procedures will apply.
Upon notification of the positive sample “B” finding, the institution shall be required to declare the student-athlete ineligible, and the institution will be obligated to withhold the student-athlete from all intercollegiate competition.
Under the current Bylaw 188.8.131.52.1, the penalty for a positive test for any NCAA banned drug is the loss of a year of eligibility and withholding from competition for a minimum of 365 days from the date of the test.
A positive finding may be appealed by the institution to the NCAA competitive safeguards committee or a subcommittee thereof. The request for an institutional appeal shall be submitted by the director of athletics or his or her designee to Drug Free Sport within two business days of the confirmation of the positive drug test unless an extension is granted by Drug Free Sport. Required documentation must be submitted by the institution within 45 days of the notice to appeal. Not later than five business days before the scheduled appeal, the institution is required to submit to Drug Free Sport all required documentation, including a written summary describing the institution’s drug-education policy and practices and the grounds for the appeal.
At least three members of the drug-education and drug-testing subcommittee of the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (CSMAS) hear appeals. The subcommittee prefers not to know the identity of the institution, the athlete or representatives of the athlete during the conference call.
Appeals are conducted by telephone conference. The director of athletics or his or her designee and the student-athlete must be on the appeal call. The NCAA does not restrict the nature of the appeal; that is to say that the NCAA will not restrict access for any reason to an institution that wishes to appeal and has satisfied the appeal procedures.
There is no one formula for appeal or ground for appeal. Florida and Grier can certainly argue about the chemical composition or any chemistry-based defenses it has, that compliance was beyond substantial and otherwise diminish the incident. He must make it clear he did not know he consumed a banned substance and/or had no reasonable expectation to know someone else was secretly giving him the banned substance and/or a school official incorrectly told him it was an acceptable substance.
“The type or amount of banned substance detected through the drug test; evidence of the student-athlete’s good character; the degree of remorse demonstrated by the student-athlete; family hardship or history of family dysfunction; and the degree to which the banned substance may or may not affect athletic performance” are things which are NOT considered.
It seems that he (and Florida) will make use of this appellate process. Florida indicated a desire to have Grier’s suspension limited to the remainder of the 2015 season.
It’s unfortunate that student-athletes can face far greater penalties for an over the counter supplement than an arrest or conviction for DUI, theft or battery. We wish Will Grier well in his fight. Hopefully all student-athletes across the country will learn from his mistake that the NCAA owns you inside and out and doesn’t have to pay a dime. And they make the rules you must follow.
Interview of John Phillips on Channel 4
John was a former sports agent and has represented children in all stages of disputes and in all areas of the law. He hosted a radio show called Courts & Sports and frequently called on to comment to local and national media, such as here: