The NFL and the Denver Broncos are asking a federal court to reject a player’s lawsuit alleging discrimination over penalties he incurred due to positive THC tests from his prescribed use of a synthetic cannabinoid.
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In a joint motion to dismiss filed with the U.S. District Court for the District of Colorado last week, the league and team defended their marijuana policy for players, affirming it’s their view that use of cannabis can lead to on-field injuries, poor job performance and “alienation of the fans.” And they challenged the discrimination claims from Randy Gregory, who played for the Broncos before transferring to the San Francisco 49ers.
Gregory filed his suit in a state district court last month, arguing that NFL and the Broncos violated the Colorado Anti-Discrimination Act (CADA) by penalizing him for using the Food and Drug Administration- (FDA) approved cannabis medication dronabinol to treat anxiety, post-traumatic stress disorder (PTSD) and pain. The case was moved to the federal court earlier this month.
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The defendants responded by arguing that those claims are “completely preempted” by the federal Labor Management Relations Act (LMRA), and they said U.S. Supreme Court and federal circuit court precedent on collective bargaining agreements demonstrate that “Plaintiff’s claims under state law must be dismissed.”
The motion to dismiss also asserts that Gregory’s allegation that the NFL and Broncos violated Colorado’s anti-discrimination law falls flat because the statute doesn’t expressly protect workers from being penalized over marijuana use, regardless of whether its used for medical purposes in compliance with state law.
“Accordingly, even accepting Plaintiff’s allegations as true, the Court should dismiss Plaintiff’s Complaint in its entirety,” it says.
While the NFL and its players union agreed to end the practice of suspending players over marijuana or other drugs as part of a collective bargaining agreement in 2020, it has continued to fine players over positive THC tests. For the first through third positive test, the fine is half a week’s salary; a fourth and each subsequent positive test is punishable by a fine equal to three week’s salary.
The league and team defended the current policy, noting that it “contains detailed requirements and protocols for testing all players and makes clear that the use of substances prohibited under the Policy, including specifically THC, ‘can lead to on-the-field injuries, to alienation of the fans, [and] diminished job performance’ as an NFL player.”
After NFL rejected Gregory’s request for an accommodation to use the synthetic THC medication in May 2023, he paid out $532,500 in penalties.
NFL and the Broncos also pointed out in their motion to dismiss that part of the reason Gregory was denied an accommodation to use the THC medication was because it was prescribed for off-label use, as dronabinol was approved for the treatment of nausea and not social anxiety, PTSD or pain.
“In sum, Plaintiff plainly seeks to use this lawsuit to avoid discipline and preclude the medical administrators from enforcing the express provisions of the NFL’s collectively-bargained Policy,” the filing says. “Not only is such a claim inextricably intertwined with the [collective bargaining agreement] and the Policy, and thus preempted under Section 301 of the LMRA, it also fails as a matter of law and must be dismissed.”
While it is taking this position in the lawsuit, NFL itself has committed significant funding to research into whether CBD can serve as an effective opioid alternative, and it’s also explored the therapeutic potential of the non-intoxicating cannabinoid for pain management and neuroprotection from concussions.
A commissioner of the NFL and the league’s players union previewed the funding plan in June 2022, emphasizing the strong interest among players and other stakeholders. The joint NFL-NFLPA committee also held two informational forums on CBD in 2020.
Meanwhile, other sports leagues have also adopted revised marijuana policies as the state-level cannabis legalization movement continues to spread.
The National Collegiate Athletic Association (NCAA) recently voted to remove marijuana from its banned substances list for Division I players, effective last month.
The Ultimate Fighting Championship (UFC) announced in December that it is formally removing marijuana from its newly modified banned substances list for athletes, also building on an earlier reform.
However, ahead of a UFC event in February, a California athletics commission said they could still face penalties under state rules for testing positive for THC over a certain limit, as the state body’s policy is based around WADA guidance.
Nevada sports regulators voted last year to send a proposed regulatory amendment to the governor that would protect athletes from being penalized over using or possessing marijuana in compliance with state law.
While advocates have welcomed these changes, there’s been criticism of WADA over its ongoing cannabis ban. Members of a panel within the agency said in an opinion piece last August that marijuana use by athletes violates the “spirit of sport,” making them unfit role models whose potential impairment could put others at risk.
Advocates strongly urged WADA to enact a reform after U.S. runner Sha’Carri Richardson was suspended from participating in Olympics events due to a positive THC test in 2021.
Following that suspension, the U.S. Anti-Doping Agency (USADA) said that the international rules on marijuana “must change,” the White House and President Joe Biden himself signaled that it was time for new policies and congressional lawmakers amplified that message.
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