by Samuel Park*
The 2016 election season is one America will not, or cannot, soon forget. However, somewhere amidst the scandals, the Saturday Night Live skits, and the uncomfortably heated two-party debates, the 2016 elections “may [have] go[ne] down as a watershed” for marijuana.
This past November, nine states voted on issues regarding marijuana usage. Four states approved recreational use and four states approved medical use. Currently, twenty-eight states have “comprehensive” medical marijuana laws.
In light of this ongoing shift and, presumably, the manifold criticisms regarding its position, the National Football League Players Association (NFLPA) is now drafting a proposal to amend the National Football League’s (NFL) policy regarding marijuana use. If the league and the union can, in fact, amend what has been deemed a “backwards” policy, they may finally undo what is viewed as a substantial abuse of their “Substances of Abuse” policy.
Weeding Through the Criticisms
Recently, the NFL ruled a ten-game suspension against Buffalo Bills player, Seantrel Henderson, for violating the NFL Policy and Program for Substances of Abuse (“Policy”). Because it was Henderson’s second violation in one year, should he fail another test, the NFL will ban him for life. Yet, even more vexing is that, in order to comply, Henderson must cease to use marijuana, which, for him, is treatment to cope with pains related to Crohn’s disease.
Although Crohn’s is incurable, medical studies have shown that the use of marijuana, in particular, helps ease pains associated with the disease. Henderson’s agent noted, “[t]here is zero allowable medical exemption for this per the NFL; however, there clearly should be.”
Henderson is not alone. Recently, nine current and former NFL players, along with Doctors for Cannabis Regulation, signed an open letter to the NFL urging the league to reconsider its stance. The letter argues that “[b]y removing cannabis as a substance of abuse, [the NFL] would also join the 76% of doctors who favor its use for medicinal purposes.”
Furthermore, this argument may be especially potent in light of recent lawsuits against the NFL for allegedly conspiring to encourage the “use [of] painkillers . . . to get [players] back on the field.” In 2011, the Journal of Drug and Alcohol Dependence found that “over half of all retired NFL players used narcotic painkillers during their careers, and 71% of those ended up abusing those painkillers.” Tennessee Titans linebacker, Derrick Morgan, argued that, regarding painkillers, “we need to know what the options are when it comes to taking care of our bodies . . . [w]e should have all options available to us.”
Yet, greater health and policy concerns aside, there are also concerns regarding the inconsistencies between the NFL’s treatment and disposition regarding marijuana use and the Policy’s actual stated goals and purposes.
Weeding Through the Rules
The NFL Program and Policy for Substances of Abuse states that its “primary purpose” is “to assist Players who misuse Substances of Abuse.” The collectively-bargained Policy first mentions a general prohibition on “Substances of Abuse,” defined as “[t]he illegal use of drugs and the abuse of prescription drugs, over-the-counter drugs, and alcohol.” The Policy also notes, in a footnote, the “NFL and the NFLPA prohibit Players from the illegal use, possession, or distribution of drugs, including but not limited to cocaine; marijuana; opiates and opioids . . . . [t]he abuse of prescription drugs, over-the-counter drugs, and alcohol is also prohibited.”
Based on their non-exhaustive list of those illegal use drugs—as opposed to the abuse drugs—the Policy, presumably, prohibits the “use, possession, or distribution” of those drugs that are prohibited by law while prohibiting the “abuse” of prescription drugs, over-the-counter drugs, and alcohol. How, then, can the NFL justify banning a substance, such as marijuana, that is now legal for medical use in more than two-thirds of NFL franchise states?
Weeding Through the Damage Control
Unsurprisingly, this past November, the NFLPA responded by forming a committee to “study players’ use of marijuana as a pain-management mechanism.” The union has since adopted the committee’s findings and is currently drafting a proposal to be presented before the NFLPA board of representatives and, ultimately, the league.
In late January, NFL Commissioner, Roger Goodell, stated, “[w]e’ve had several conversations about this issue and . . . . [it] will be one of the subjects in the collective bargaining process.” Perhaps, if the union and the league can now tune itself to the legislative and medical zeitgeist, players may finally look to alternative sources of pain relief without fear of severe, and possibly career-ending, punitive repercussions.
* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2018, Villanova University Charles Widger School of Law
 Danielle Kurtzleben, The Most ‘Unprecedented’ Election Ever? 65 Ways it Has Been, NPR (July 3, 2016, 6:00 AM) http://www.npr.org/2016/07/03/484214413/the-most-unprecedented-election-ever-65-ways-it-has-been (listing all noteworthy events from 2014 through election).
 Katy Steinmetz, How the 2016 Election Became a Watershed for Weed, Time (last updated Nov. 10, 2016, 5:04 PM), http://time.com/4557472/marijuana-2016-states-legalized/ (discussing nine states with marijuana on ballots); see generally Gary Johnson, The Two Parties Are Rigging the Debates: Libertarian Gary Johnson Makes the Case for His Inclusion, Daily News (Sep. 25, 2016, 5:00 AM), http://www.nydailynews.com/opinion/gary-johnson-parties-rigging-debates-article-1.2803881 (arguing against exclusively two-party debates).
 See Katy Steinmetz, These States Just Legalized Marijuana, Time (last updated Nov. 10, 2016, 4:59 PM), http://time.com/4559278/marijuana-election-results-2016/ (noting Florida, Montana, North Dakota, and Arkansas for medical usage; California, Nevada, Arizona, Massachusetts, and Maine for recreational usage).
 See Jared Dubin, NFLPA Reportedly Proposing a ‘Less Punitive’ Approach to Marijuana Use, CBS Sports (Jan. 25, 2017), http://www.cbssports.com/nfl/news/nflpa-reportedly-proposing-a-less-punitive-approach-to-marijuana-use/ (discussing NFLPA’s recent efforts regarding marijuana usage); see, e.g., Ross Benes, Inside NFL’s Backwards Marijuana Policy, Rolling Stone (Sep. 21, 2016), http://www.rollingstone.com/sports/nfls-backwards-marijuana-policy-w438912 (criticizing NFL’s drug policies).
 See generally Ian Rapoport, Bills OT Seantrel Henderson Suspended 10 Games, NFL (last updated Nov. 29, 2016, 2:16 PM), http://www.nfl.com/news/story/0ap3000000746283/article/bills-ot-seantrel-henderson-facing-10game-suspension (discussing suspension and Henderson’s medical issues).
 See Maxwell Strachan, The NFL is Punishing a Player Who Uses Marijuana to Treat His Crohn’s Disease, Huffington Post (Nov. 30, 2016, 2:41 PM), http://www.huffingtonpost.com/entry/seantrel-henderson-crohns-disease-marijuana_us_583f1a2be4b017f37fe20c1c (discussing Henderson’s case).
 Mike Chiari, NFL Sued by Former Players Over Painkiller Usage: Latest Details, Comments, Bleacher Rep. (May 21, 2015), http://bleacherreport.com/articles/2472326-nfl-sued-by-former-players-over-painkiller-usage-latest-details-comments (“The former players are accusing NFL teams of advising them to use painkillers in an effort to get them back on the field.”); see generally Evans v. Arizona Cardinals Football Club LLC, No. C 16-01030 WHA, 2016 WL 3566945, at *1 (N.D. Cal. July 1, 2016) (refusing to dismiss case and allowing discovery).
 Nadia Kounang, Players and Doctors Call for NFL to Reconsider Marijuana Stance, CNN (last updated Nov. 11, 2016, 11:09 AM), http://www.cnn.com/2016/11/11/health/nfl-marijuana-stance/ (discussing opioid painkiller addiction within NFL).
 National Football League Players Association and National Football League Management Council, Policy and Program on Substances of Abuse 2 (2014), available at https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Active%20Players/Drug_SOA_Policy_9-29-14.pdf.
 See An Open Letter to the National Football League from Doctors for Cannabis Regulation, supra note 13 (stating twenty-two of thirty-two franchises are located in states in which medical marijuana is legal).
 Mark Maske, As More States Legalize Marijuana, NFLPA to Study Potential as a Pain-Management Tool, Wash. Post (Nov. 9, 2016), https://www.washingtonpost.com/news/sports/wp/2016/11/09/as-more-states-legalize-marijuana-nflpa-to-study-potential-as-a-pain-management-tool/?tid=a_inl&utm_term=.98271d5c7b96 (discussing NFLPA’s response to states legalizing marijuana).
 Mark Maske, NFLPA Composing Proposal for ‘Less Punitive’ Approach to Marijuana Use, Wash. Post (Jan. 25, 2017), https://www.washingtonpost.com/news/sports/wp/2017/01/25/nflpa-composing-proposal-for-less-punitive-approach-to-marijuana-use/?utm_term=.cc6032c99cd9. (quoting Roger Goodell’s response).