wherein athletes are held to the uniform policies and procedures of the WADA World

Anti-Doping Code (WADA Code). These policies may be subject to U.S. constitutional
privacy and due process restrictions only where administered by a public entity or state
actor, such as the drug testing of interscholastic or intercollegiate athletes in public
schools. By contrast, professional sport leagues are private associations of member
clubs that own and operate teams within the respective sport. Players contract with
individual teams but are collectively represented by a players’ association
union, which acts as the players’ exclusive bargaining representative in
negotiations with the league. Drug testing policies in major U.S. unionized professional
sport are topics that must be negotiated with the players, rather than imposed
unilaterally, under the federal labor law, and therefore adopted as set forth in the
respective leagues’ collective bargaining agreement (National Labor Relations Act, 9
U.S.C. §§ 157, 158(1)). While no similar statutory or labor protections exist for
Olympic or international sport athletes, they are generally bound by fundamental
contract law based on their acceptance of membership in a sport federation and the
application of that federation’s rules, which include anti-doping proscriptions, to
their individual sport participation The following discusses the anti-doping policies in
U.S. collegiate and major professional league sport, as well as Olympic sport. However,
doping is an issue in sport at all levels and is found in every type of sport. A direct
comparison of the policies is difficult due to the varied policies adopted and, mostly,
enforced by the respective sport organization (e.g., baseball has rules governed by the
collective bargaining agreement between Major League Baseball (MLB) and the MLB
Player Association (MLBPA), but the international game is regulated by the IOC-
recognized international federation and is subject to the WADA Code). The policies
even vary on the definition of doping, the concept of the athlete’s strict
responsibility for all substances consumed, the focus on treatment (if any), how to
address recreational use, testing procedures, and sanctions (Gandert & Ronisky, 2010).
For example, the concept of strict liability for all substances consumed is stated in anti-
doping policies for Olympic sport but not expressed in the MLB or National Basketball
Association (NBA) policies directly. All policies recognize a medical necessity
exception for use of banned substances, where athletes comply with a process for
receiving a therapeutic use exemption (TUE). The need to address doping as cheating in
sport and for education and prevention through anti-doping policies is a driving force
motivating all of the anti-doping programs.
At the collegiate level, student-athletes at NCAA member institutions are required to
comply with the NCAA Drug Testing Program.

The NCAA bans eight classes of drugs, including stimulants, anabolic agents, diuretics
and other masking agents, peptide hormones, and steroids, and it posts a nonexhaustive
list of the banned substances. The NCAA conducts testing for these substances year-
round, as well as for other street/illicit drugs and stimulants at championships and post-
season bowl games. Member institutions may also test student-athletes. Sanctions include
loss of one year of eligibility for the first offense and complete and permanent
ineligibility for a second violation. Appeals of a positive drug test are brought by member
institutions upon request of the student-athlete and heard for final determination before
the NCAA Committee on Competitive Safeguards and Medical Aspects of Sport in a
telephonic conference. The bans on performance-enhancing substances and street drugs
are intended to protect athlete health and safety and the integrity of sport competition.
The legality of the NCAA’s drug testing program has been repeatedly upheld. This in in
spite of significant challenges based upon balancing athlete privacy concerns with
protecting the health and safety of athletes and maintaining program reputation ( S e e
Hill v. NCAA).