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Federally Mandated Random Drug Testing in Professional Athletics: Constitutional Issues

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Publication Date: June 2005

Publisher(s): Library of Congress. Congressional Research Service

Series: RL32911

Topic: Social conditions (Sports)

Abstract:

Problems of usage of steroids and other performance enhancing drugs in professional and amateur athletics have been the focus of a series of investigative hearings before the House Government Reform Committee. The Committee began taking evidence on March 17, 2005, when several former and current players, medical experts, and major league baseball executives were summoned to testify in the first hearing. Committee Chairman Tom Davis has urged all sports leagues to "acknowledge that their testing programs need improvement" and has framed bipartisan legislation to establish a uniform testing policy for major professional sports leagues. Currently, there are four professional athletic drug testing bills before Congress: S. 1114 (Senator McCain); H.R. 2565 (Representative Davis); H.R. 1862 (Representative Stearns); and H.R. 2516 (Representative Sweeney). The McCain and Davis bills are virtually identical, and all four bills would establish minimum drug standards -- including random testing -- for some professional sports leagues.

Congressionally mandated drug-testing requirements for both public employees and workers in private industry subject to federal regulation have a fairly long and well established legal history. Nonetheless, the federal courts have recognized limits, largely anchored in constitutional privacy interests of affected workers, that circumscribe governmental authority to impose suspicionless random testing requirements in the public or private sectors. These decisions establish that "compelling" governmental interests may, in appropriate circumstances, override constitutional objections to testing procedures by employees whose privacy expectations are diminished by the nature of their duties or workplace scrutiny to which they are otherwise subject. They further suggest, however, that substantial constitutional difficulties probably confront any broad-based testing program that is not limited to specific occupational categories or to persons for whom the government is able to demonstrate some special need to test.

It could be argued that professional players have a diminished expectation of privacy as the consequence of league or association rules that already require routine physical examinations and testing for drugs in certain circumstances. Moreover, a separate argument could be made that safety and health concerns associated with steroid usage, and the importance of professional athletes as role models for the nation's youth, justify unannounced testing for anabolic steroids or other controlled substances. Testing of randomly selected athletes may also be the least intrusive route to an effective steroid detection program. Past major league baseball procedures, it has been argued, do not deter steroid use. Moreover, arguably, the reasonable suspicion standard may be unworkable since most often there may be no outward symptoms to signal the use of steroids.