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© 2018 Wiley Periodicals, Inc., A Wiley Company • All rights reserved DOI: 10.1002/catl

VOLUME 15, ISSUE 5 AUGUST 2018

SnapShotS

MANAGING YOUR OFFICE

Crack the communication code. Page 6

OF COUNSEL Learn how the EU’s

privacy regs impact your student-athletes. Page 8

YOU MAKE THE CALL Were campus police

covered by public records law? See if you can guess how the court ruled in this month’s highlighted legal case. Page 9

LAWSUITS & RULINGS Review summaries of

recent court cases. Pages 10–11

LEADERS & INNOVATORS Aaron Denton, vice

president of athletics at NC Wesleyan College, shares advice for managing challenges facing college athletics. Page 12

Continued on page 4.

Continued on page 3.

Compliance

Prepare for potential impact of legalized sports betting

By Claudine McCarthy, Editor WASHINGTON, D.C. — As many states continue to weigh whether to allow

sports betting, colleges and universities brace themselves for the potential impact on their athletics programs.

Prior to the U.S. Supreme Court’s ruling in May to overturn a 1992 federal law prohibiting sports betting, only Nevada, and three other states to a much lesser degree, had legalized sports gambling. Now, all states have one year to decide if they will legalize sports betting, with more than a dozen predicted to do so.

A panel discussed the issue at the recent annual convention for the National Association of Collegiate Directors of Athletics.

Compliance

Look for inconsistencies in drug-testing policies, procedures

By Claudine McCarthy, Editor WASHINGTON, D.C. — Charged with armed robbery and trying to justify his

plea for a reduction in bail, a former student-athlete claimed to have developed a drug problem at Rutgers University, where he failed several drug tests as a football player, and placed the blame squarely on the school’s shoulders. That statement made during a 2015 bail hearing in turn opened the door for an investigation into Rutgers’ drug-testing policies and procedures, according to Paul Perrier, senior associate athletics director and chief compliance officer at Rutgers.

That investigation revealed that the athletics department’s drug-testing policy had last been reviewed several years prior. It also revealed a lot of inconsistent practices, unwritten rules, and long-forgotten procedures. “We had different people saying different things. There were a lot of procedural things we weren’t following,” Perrier acknowledged. From there, the athletics department under- took a review and updating of its drug-testing policy and procedures.

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4 College AthletiCs And the lAw

August 2018 DOI: 10.1002/catl

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Continued from page 1 Drug testing plays role

in states that legalize pot The legalization of marijuana in Colorado hasn’t

significantly increased overall positive drug-test results among student-athletes at Colorado State University, which did increase its testing frequency from once a month to two or three times per month, according to Shalini Shanker, senior associate AD for compliance. The increased testing has identified more student- athletes arriving on campus with pre-existing marijuana addictions, which has led to the incorporation of more intensive counseling, and if student-athletes don’t com- ply they’re withheld from team activities, she explained.

“We’re trying to help our student-athletes to recover rather than being punitive,” Shanker said. But the athletics department still emphasizes that even though marijuana has been legalized by the state, it’s prohibited by the National Collegiate Athletic Association, on campus and on federal land, and by those under 21, she noted. Education helps student-athletes and staff alike. In fact, athletics staff have been surprised to discover that for student-athletes, Adderall and painkillers are often a gate- way to marijuana rather than vice versa, she noted. ■

CoMplianCe

If your school faced a similar investigation, would your written drug-testing policies and procedures prove consistent with your actual practices and verbal statements throughout your department?

Considering the increased spotlight on drug test- ing, now is the time to examine your drug-testing policy, Perrier said. You might discover your written policy doesn’t accurately reflect the minor or major tweaks you’ve made along the way, he noted.

Perrier spoke about drug-testing policies at the annual convention for the National Association for Athletics Compliance as part of a panel that included Erika Kuhr, M.Ed., ATC, CSCS, senior director of sport drug testing at Drug Free Sport; and Shalini Shanker, senior asso- ciate AD for compliance at Colorado State University.

Although the National Collegiate Athletic Associa- tion doesn’t require schools to have a drug-testing policy, if you do have one, you’re required to follow it, Perrier said. And a drug-testing policy can deter drug use/abuse and identify student-athletes need- ing help, he noted.

As you review your school’s drug-testing policy, Perrier and Kuhr recommended keeping the follow- ing points in mind:

❑ Choose the right person to oversee the policy. You have to make sure it’s the right person. Some schools might designate their team physician as the overseer, but that might not be the best person. Instead, consider a drug-testing committee with one lead per- son who tracks and documents all drug-testing tasks.

❑ Develop a drug-testing committee. This can be challenging because “no one wants to be the bad guy,” Kuhr said. Include representatives from sports medicine, athletic training, and compliance. “It’s important to share the load because it helps ensure accountability,” and maintains knowledge in case of turnover or infractions, she added.

❑ Leave room for flexibility. Perrier noticed Rutgers’ policy had an aggressive tone, so after much discussion with the physician and general counsel, they switched to more flexible language, such as us- ing words like “should/may” instead of “shall/will.” Include wording that gives the AD the flexibility to sway from the policy any time she deems it necessary.

❑ Make the banned list more gray than defini- tive. Consider such wording as “including but not limited to the NCAA banned list.”

❑ Determine the selection process. If you want to select and test a team that’s heading to a championship, you’ll need to ensure that your policy already states you can do that. Policies should also address testing under the following circumstances:

random, reasonable, suspicion, team, pre-season, post-season, follow-up, and re-entry.

❑ Understand the collection process. Hair, urine, saliva, and blood each measure different detection windows. “Urine can detect more recent one-time experimentation use and will also help you deal with those chronic users,” Kuhr said. Saliva detects use within the past 24 to 48 hours, while hair reveals only chronic use.

❑ Set penalties. Many schools have different penalty structures for marijuana than other drugs, with most schools having moved to four or five strikes for marijuana while keeping three strikes for all other drugs, but some have zero tolerance, Kuhr said. Baseline testing of all incoming student-athletes has also become common. At Rutgers, five strikes with marijuana leads to team dismissal, coaches aren’t notified of results that fall just under the threshold, and positive results for marijuana on baseline tests don’t count as violations but trigger referrals to counseling/support. Colorado assigns mandatory counseling for the first strike, a percentage of the season for the second strike, and dismissal for the third strike. Decide whether to remove strikes for staying clean for a certain time or for self-reporting and requesting help.

❑ Remove obstacles. Steer clear of wording that deters a student-athlete from obtaining help. For

5College AthletiCs And the lAw

Vol. 15, Iss. 5 DOI: 10.1002/catl

© 2018 Wiley Periodicals, Inc., A Wiley Company All rights reserved

CoMplianCe

Guide student-athletes through appeals process When student-athletes receive positive drug-test results, expect them to respond with one of the following arguments: 1. I didn’t take the drugs. 2. The product I took was tainted. 3. A drug-testing procedure wasn’t followed. That’s according to Christian Dennie, Esq., an attorney at Barlow Garsek & Simon, LLP, a law firm with offices in Texas. These common defenses aren’t likely to be considered by the National Collegiate Athletic Association, Dennie

said. “Walking in and saying, ‘I didn’t do it,’ that’s not going to go very far,” he said. But athletics administrators must pursue an appeal if the student-athlete wants one, because “that’s your job,”

Dennie said. When a student-athlete goes through the appeals process, help student-athletes look at the situation from different angles, he advised, by asking such questions as: “What have you been eating and taking?”

Together, help them research the information they provide in an attempt to determine what might have caused the positive drug-test results, Dennie recommended. For example, eating wild game, such as elk, can increase testosterone levels and lead to positive drug-test results, he explained.

NCAA bylaws do allow claims based on a procedural challenge (i.e., collection procedures weren’t correctly followed) or a knowledge challenge (i.e., the student-athlete was given the drug without his knowledge), but the NCAA won’t consider challenges based on character defense, remorse, or family hardship, Dennie noted. And even if you and others involved can prove and agree on the facts demonstrating a procedural or knowledge challenge, it’s unlikely that the NCAA will accept it, but it might help mitigate it, Dennie added.

He shared a real-life example of a student-athlete who went shopping armed with a list of NCAA-banned sub- stances. After GNC staff helped him compare the NCAA list to the ingredients in a particular product, they all agreed none of the banned substances were in the product, which he purchased and consumed. But he failed his drug test. The student-athlete’s first mistake was not consulting with his athletic trainer, Dennie noted.

In an attempt to challenge the test results, they sent the product for lab testing, which revealed the product was tainted, but the NCAA didn’t allow the lab’s findings as an excuse, Dennie said. “It is a very difficult standard at the NCAA level where it’s very difficult to overcome positive test results,” Dennie explained.

Email [email protected] or visit www.bgsfirm.com. ■

example, if a student-athlete has a criminal violation or seeks medical help for drugs/alcohol, the revised Rutgers policy doesn’t trigger any negative actions.

❑ Prepare to handle variables. If a student- athlete has a drug-use violation and penalties don’t take effect until after completion of the hearing and the appeal, a student-athlete might try to delay the process so he can compete in the meantime. Also have a plan for handling medical noncounters who fail drug tests — giving them a standard penalty of sitting out games won’t impact them because they’re already not competing due to their injuries, for example. “If they’re getting money, still getting benefits, then it’s still a potential PR nightmare, even if they’re not on the field making plays,” Kuhr noted.

❑ Establish an implementation procedure. This policy behind the policy should clearly spell out how, when, on what basis, and with what frequency, as well as the timeframe for reporting results. It helps prevent coaches from working the system by dictating whom they want tested when. Share the implementation policy with coaches but not with student-athletes. Don’t include it within your overall drug-testing policy; otherwise, you’ll be held to it.

❑ Address privacy. When a student-athlete transfers to another school after being dismissed for drug violations at your school, coaches might want to disclose the violations to the other school. So educate coaches that it would violate the Family Educational Rights and Privacy Act, placing them- selves and their schools at risk.

❑ Develop a one-page documentation form. List every step of the drug-testing/violation process, including date and time, and who was present along with their initials. It will prove valuable if questions arise later. Designate one person (such as the direc- tor of athletic training) to complete it.

❑ Treat your policy as a living document. Schedule reviews and updates for every six months to ensure inclusion of any minor or ma- jor tweaks, interpretations, and decisions made along the way.

❑ Establish an appeals process. “The appeals process is an absolute, absolute must,” Kuhr said. Appeals must provide due process.

Email [email protected] or shalini. [email protected], or visit www.drugfreesport. com. ■

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