How to Challenge an Athletic Drug Testing Policy

In the United States, athletes take many forms and are defined differently depending on the level at which they play. Athletic drug testing policies differ in scope and administration depending on who is being tested and who is doing the testing. If you think a drug testing policy might be violating the law, you will first need to define your legal status. Doing so will help you determine how to attack the policy in question. In order to bring a legal challenge, you need to hire a qualified attorney. Some public interest organizations, such as the American Civil Liberties Union, might help you bring your legal challenge.

Part 1

Part 1 of 4:

Defining Your Status and Legal Standing

1
Make the public-private distinction. In order to make a constitutional challenge to a drug testing policy, the policy must be administered by a "state actor" or under the direction of a legislative enactment. A state actor is someone who is acting on behalf of a governmental body.^{[1]XResearch source} For example, if you are a high school athlete who is drug tested by your school, there is most likely state action. If this is the case, the school must adhere to constitutional principles. On the other hand, if you play club sports as an employee for a private entity who drug tests on their own (i.e., testing is not mandated by law), constitutional principles will not apply.
- If constitutional provisions apply, the entity administering the drug testing policy will be bound by the Fourth, Fifth and Fourteenth Amendments. Under the Fourth Amendment, drug testing is considered a search and therefore it must be reasonable. The most essential factor in determining reasonableness is whether you have an expectation of privacy when it comes to testing. One Supreme Court case has determined that high school athletes have a lowered expectation of privacy and that drug testing policies are a valid condition for participating in high school sports. Under the Fifth Amendment, you must have a meaningful ability to challenge and appeal drug testing results. The right to go to school and participate in sports has been determined to be a property right that triggers these requirements.
- If constitutional provisions do not apply, most of the issues will surround your contract rights (and any breach caused by the drug testing) and consent. This is often the case with professional sports.^{[2]XResearch source}^{[3]XResearch source}
2
Consider whether you are part of a union. If you are an athlete employed in the private sector (i.e., the Constitution does not apply), you must determine whether you are part of a union or not. Most professional athletes are a part of a union. Unionized athletes are generally more protected than their non-unionized counterparts. The National Labor Relations Board (NLRB), with respect to unionized employees, has held: (1) the institution of a drug testing policy for current employees is a "material change" in working conditions that must be collectively bargained for; and (2) pre-employment drug testing does not.
- This means pre-employment drug testing policies can usually take any form the employer sees fit, but post-employment drug testing policies must be bargained for. When a drug testing policy is bargained for, your employee union will try to make compromises restricting the time and manner in which testing can occur.^{[4]XTrustworthy SourcePubMed CentralJournal archive from the U.S. National Institutes of HealthGo to source}
- If you want to challenge a drug testing policy as a union athlete, talk with union leadership. In general, you will be able to file a complaint with the NLRB, file a grievance according to the policies set forth in your collective bargaining agreement, or you can seek an injunction in court.^{[5]XResearch source}
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If you are not part of a union, the pre-employment - post-employment distinction becomes less relevant. In these cases, you will most likely be subject to any testing the employer sees fit. However, you might be able to challenge a policy on contractual grounds (e.g., your contract states you will not be tested and you were) or consent grounds (e.g., you did not consent to drug testing when it was required).
4
Check state laws. If federal law requires drug testing, no state law can say anything to the contrary. However, state law may bar certain employers from engaging in drug testing, even where federal and constitutional law would allow it. This is particularly true in private sector jobs where federal law does not legislate as much. In California, for example, pre-employment drug testing requires a showing of "reasonableness" and post-employment drug testing requires a "compelling interest."^{[6]XTrustworthy SourcePubMed CentralJournal archive from the U.S. National Institutes of HealthGo to source}
- Therefore, if you are an athlete employed in a private, non-unionized role, state law may protect your rights. If you think you have been drug tested inappropriately, check with your state laws to learn more.
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Part 2

Part 2 of 4:

Building Your Legal Case Against the Policy

1
Refuse to sign the drug testing consent form. If you sign, then it will be harder to challenge the drug testing policy. You can consent to any search, and signing a consent form might prohibit you from claiming that the drug testing policy is an unconstitutional search.^{[7]XResearch source}
- If your child is a school athlete who has already signed the consent form, you can have him or her revoke the consent.
- Realize that you or your child might not be able to participate in athletics as you challenge the drug testing policy.
2
Keep a copy of the drug testing policy. Your lawyer will want to see the details of the drug testing policy. For this reason, you should hold onto a copy of the policy.
- If you didn't receive a copy, then you should ask the appropriate person for a copy.
3
Contact a lawyer. Immediately after refusing to sign the consent form, you should contact a lawyer to discuss challenging the drug testing policy. You will want to bring the legal challenge as soon as possible, so you shouldn't delay in finding a lawyer.
- You should reach out to civil liberties organizations like the American Civil Liberties Union. The ACLU has brought challenges to school drug testing policies in Pennsylvania and New Jersey.^{[8]XResearch source}^{[9]XResearch source} In addition, the ACLU may be able to help you if you are a private employee working as a club sport participant.
- You can reach your local ACLU affiliate by searching the map at https://www.aclu.org/about/affiliates?redirect=affiliates. Click on your state.
- If the ACLU cannot help you, then they can direct you to a lawyer who might be able to represent you. If you are part of a union, discuss legal representation with your union leaders.
4
Hire the lawyer to represent you. In order to successfully challenge the drug testing policy, you will need to argue that it is unconstitutional or in some other way against the law. Unfortunately, you can't learn the details of the law on your own, so you will need to hire a lawyer to bring the lawsuit.
- The ACLU represents clients free of charge.^{[10]XResearch source} You shouldn't hesitate to contact them and ask if they will represent you.
- If the ACLU cannot represent you, then you might be able to get a law firm to represent you pro bono. Sometimes law firms will provide free legal services to handle interesting legal issues. Your local chapter of the ACLU might know of firms willing to represent you for free.
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Part 3

Part 3 of 4:

Filing the Lawsuit

1
Draft a petition. Your lawyer will file a lawsuit challenging the athletic drug testing policy. Your lawyer will file a petition and probably also file a motion for a preliminary injunction. Your lawyer should draft these documents.
- An injunction is a court order directing the employer (employer throughout also refers to schools) to stop doing something. In the context of your lawsuit, your lawyer will seek an injunction stopping the employer from enforcing its drug testing policy.^{[11]XResearch source}
- An injunction is only a temporary remedy. It is possible to get an injunction but then lose the trial.
2
Serve notice of the petition on the employer. Your lawyer will need to give the employer notice that a lawsuit has been filed challenging its athletic drug testing policy. The employer will then have a certain amount of time (usually 30 days) to respond.
- Your lawyer will serve the notice on the defendant using a court-approved method. Generally, your attorney can send the employer notice by hiring a private process server or having someone 18 or older who is not part of the lawsuit make service.
- In some courts, you can also mail the employer a copy of the notice certified mail, return receipt requested.
- You typically cannot personally deliver a copy of the notice.^{[12]XResearch source}
3
Receive the employer's response. The employer will respond to your lawsuit by arguing that the drug testing policy is legal. It will file either an answer or a motion to dismiss.^{[13]XResearch source} Your lawyers will receive a copy of any documents the employer files.
- Your employer will probably argue that its athletic drug testing policy is legal. It will argue that your state's supreme court has not outlawed athletic drug testing under your particular circumstances.
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Part 4

Part 4 of 4:

Going to Court

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Ask your lawyer what your role will be. The court will hold a hearing on your motion for a preliminary injunction.^{[14]XResearch source} After deciding whether to grant an injunction, the court will hold a full trial on the legality of the employer's athletic drug testing policy. Generally, you won't have to do anything during the hearing or any trial. Nevertheless, you should talk to your lawyer about what your role will be during the litigation.
- Your child should not have to testify. You aren't suing for emotional distress, pain or suffering, or other kinds of damages. For this reason, you or your child will probably not testify.
- Although you won't do much during the court case, you should try to stay engaged. Have regular meetings with your lawyer and ask questions. Read the documents filed in the case so that you will have some idea of what the arguments are.
2
Argue that a preliminary injunction is necessary. At a hearing, your lawyer will argue that the judge should give you a preliminary injunction. Your lawyer will argue the following:^{[15]XResearch source}
- That you will be “irreparably harmed” without the injunction. This should be fairly easy to show. Without the injunction, you cannot play sports, and a trial will not be decided before the end of the season.
- That you will likely win the lawsuit because the law is unconstitutional or otherwise illegal. Here, your lawyer will have to argue the legal issue: that the drug testing policy is against the law. The judge will have to believe that you are likely right before he or she will give you a preliminary injunction.
- That the balance of hardships tips in your favor. You also need to argue that if you don't win an injunction then you will be burdened more than the employer would be burdened if you won the injunction.
3
Receive an injunction and go to trial. The judge will first have to decide whether to grant a preliminary injunction. After deciding that issue, you will then prepare for a trial on the merits of whether the athletic drug testing policy is against the law.
- If you get an injunction, then you have not won the lawsuit. However, the employer will be temporarily ordered not to enforce its athletic drug testing policy. Typically, this means you should be able to participate in athletics since no drug testing can take place.
- Regardless of whether the judge grants the preliminary injunction, you will have a full trial on the issues. If you win at trial, then a preliminary injunction can be made permanent.
- If you lose at trial, then any preliminary injunction will be dissolved.^{[16]XResearch source}
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