Is This a Secret Loophole in the NBA and NFL’s Pot Bans?

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Steve Kerr’s tenure as Golden State Warriors head coach has been brief but extremely memorable. He won a championship in his first year, and the Warriors set an NBA record for wins in his second—and now in his third year, Kerr is making waves for his recent “admission” that he used marijuana to deal with the pain from several back surgeries.

During a conversation on changing perceptions about cannabis use among professional athletes, Kerr expressed hope that pro sports would allow marijuana to be used as a pain treatment. He also told CSN Bay Area’s Monte Pool in a podcast on Friday that he’d tried the drug a couple of times over the preceding 18 months—and it didn’t work.

“I’m not pot person. It did not agree with me. It did not agree with me at all,” said Kerr, who said that he’d tried in twice during the last “year and a half.”

“I guess maybe I could get into some trouble for this…I have no idea if I would have failed a drug test, I don’t even know if I’m subject to a drug test,” he continued. “I tried it, and it didn’t help it all, but it was worth it. I was searching for answers on pain, and I’ve tried painkillers and drugs of other kinds, and those have been worse.”

The NBA put out a release clarifying that, yes, Kerr does indeed get drug-tested once a year as a coach—maybe without his knowledge?—but that there is a “medical exception” to the league’s ban on marijuana as a drug of abuse. But since Kerr used it while on medical leave away from the team, it wouldn’t have applied.

Kerr made his admission near the end of a half-hour-long podcast, almost as if it was an afterthought. But since this is America, his cannabis confessional became a major headline in the NBA and in all American sports over the weekend.

This comes a few weeks after the NFL suspended Seantrel Henderson, a 24-year-old offensive lineman for the Buffalo Bills who suffers from Crohn’s disease, for 10 games following a positive drug test.

Henderson’s agent says he used cannabis only to deal with the intense abdominal pain following removal of two-and-a-half feet of his gastrointestinal tract—a situation that left him physically unable to use opiate-based prescription painkillers, the same painkillers that the NFL and the NBA freely hand out. In the NFL, there is no medical exception for marijuana use. It’s possible for players to time their use with their annual preseason tests in mind, but for someone like Henderson who used it regularly for pain, a positive test—and the accompanying punishment—was inevitable.

However, as law school professor Roger Groves pointed out on Forbes, that there appears to be another way around the league’s bans on the drug that—in theory at least—would allow a player to use cannabis every day and avoid punishment.

All you need to do is avoid THC.

THC is one of more than 80 active cannabinoids in the cannabis plant, but it’s by far the most well known. Psychoactive and intoxicating, for a time, we understood—wrongly—THC to be the “active ingredient” in marijuana. We now know that other cannabinoids, such as cannabidiol, or CBD, also play roles in determining the effect of marijuana on the human body and brain. It’s CBD that appears to relieve epileptic seizures, and it appears that cannabis oils or strains of flower high in CBD are effective in combating mental afflictions like PTSD.

Marijuana is a banned substance on most levels of sport. The World Anti-Doping Agency, which regulates all kinds of drug use in international competition, lists marijuana as a banned substance. Marijuana is banned in the NBA and the NFL by mutual agreement between the league and its players in the leagues’ respective collective bargaining agreements.

But as it happens, most drug tests look for the presence of THC metabolites—not for any evidence of the use of CBD. Indeed, the NFL has a threshold of 35 nanograms of THC per milliliter (ng/ml) of urine for a “positive” test. In the NBA, urine samples are submitted to the World Anti-Doping Agency, according to the collective-bargaining agreement, and WADA has a threshold of 150 ng/ml.

However, in both cases, there appears to be no examination for CBD. Thus, it seems possible that a player or a coach could use CBD-rich cannabis regularly while avoiding the THC exposure that would trigger a positive test.

In layman’s terms, the THC gets you high. The CBD does not,” Groves wrote. “A player’s use of CBD products provides analgesic and anti-inflammatory properties. The league bans on THC could remain. The league would just become more sophisticated in its testing.”

Much of this seems like technical two-stepping, using exceptions and the fine print to avoid what is clearly meant to be a blanket ban. Then again, this is the realm of lawyered-up collective bargaining agreements—so technicalities are the rule.

Whether this theory has ever been put into practice is another question. If it has and a player failed anyway, they haven’t gone public. If it has, and players have avoided detection, we wouldn’t know—which is good, because the league could figure this out and then adjust its testing policies to also include CBD, which would be a vastly unpopular move.

This also begs the question of who would be the first person to put this to the test—both the detection-avoidance theory and the league’s subsequent reaction.

Marijuana absolutely needs a proper messenger. Kerr made his admission under significant cover. He’s the reigning Coach of the Year; his team is successful and scandal-free; and he lives and works in northern California, one of the most permissive atmospheres for marijuana use on the planet. All this helps when trying to ensure a serious conversation.

Kerr also made sure the conversation had the proper context. 

This isn’t about smoking recreational marijuana, he said on Saturday—this is about the ability to make an informed choice about your health in a world gone mad with prescription opiates.

You get handed prescriptions for Vicodin, OxyContin, Percocet,” Kerr told the San Jose Mercury News on Saturday. “NFL players, that’s what they’re given. That stuff is awful. That stuff is dangerous. The addiction possibility, what it could lead to, the long-term health risks. So the issue that is really important is: How do we do what’s best for the players?”

If you do any research at all, the stuff they’re prescribing is really bad for you,” he continued. “The stuff that they’re banning is fine.”

Kerr’s confidence that the bans will change soon might come from his Bay Area bubble. It may also be the hope of a reasonable man who sees society changing, and reasonably believes major pro sports will change along with it. But in the meantime, it appears that the ban can be beat. 

You can keep up with all of HIGH TIMES’ marijuana news right here.

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