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Marijuana’s Purported Ability to Speed Brain Recovery May Leave Colleges and Universities Vulnerable

2013 September 11
by Paul D. Anderson Consulting, LLC

By: Holt Hackney

The following is a piece that was published in the September edition of the Concussion Litigation Reporter. Concussion Litigation Reporter is published monthly by Hackney Publications. Each issue provides timely reporting on developments and strategies in the emerging legal practice area of sports concussions. To learn how to subscribe, click here

Collegiate athletics has a pot problem.

Those in the athletic department that are closest to the student athletes know this. And yet leadership really isn’t sure how to address it. Should they take a hard line and suspend players indefinitely for one failed test, or should they give the athletes several strikes (failed drug tests) before suspending them for a cupcake game for “a violation of team rules?”

Interestingly, this quandary may become a moot point in a matter of years.

Why?

Society’s growing acceptance of the medical applications of marijuana and a tidal wave of funding into the research on how to prevent sports concussions and lessen their tragic consequences, may lead to an inevitable conclusion, according to sources interviewed by Concussion Litigation Reporter – marijuana may be more beneficial to athletes, than harmful.

So what happens when marijuana is prescribed in one of the 20 states that allow for the medical use of the drug and a school in that state has rules on the books that call for the punishment of those student athletes that fail a test for the drug?

“This will be a whole new area of liability for the schools,” a sports law attorney involved in collegiate athletics told us.

The Science

For nearly a century, researchers have been encouraged and given mandates to explore the harmful effects of marijuana. Only recently has that focus started to shift.

First, there was the recognition that THC, the ingredient associated with “getting high,” can help those with glaucoma, loss of appetite from chemotherapy, or needing pain relief.

More recently, the focus has shifted to another ingredient in marijuana. “(Cannabidiol) appears to have profound nerve-protective and brain-enhancing properties,” Chris Kilhan, a FoxNews medical correspondent, said in a 2012 interview, summarizing a growing body of research. Among the many articles that support this conclusion are:

Clint Werner, a researcher and unabashed advocate for the medical applications of marijuana, recently wrote: “Severe head injuries automatically trigger the production of an excessive amount of neurotransmitters called glutamates. When there are too many of these chemicals in the brain, they can initiate a chain reaction of cell degradation and impairment. The cannabinoids, which we find in marijuana, work as effective antioxidants, potentially neutralizing the glutamate activity and stopping the cascade of neuronal damage that can follow.”

The Developing Case Law

Last spring, a state appeals court in Colorado, where medicinal marijuana is legal, ruled that Dish Network Corp. and subsidiary Dish Network LLC was within its rights to fire an employee after the man, a quadriplegic who was prescribed marijuana, tested positive for the drug.

But the landscape is already shifting under such decisions. Last week, the U.S. Department of Justice announced it would not block laws legalizing marijuana in 20 states and the District of Columbia.http://www.nytimes.com/2013/08/30/us/politics/us-says-it-wont-sue-to-undo-state-marijuana-laws.html?_r=0

“The ball is rolling downhill … it is gaining momentum,” Seth Brickman, product manager for management liability at Business Risk Partners, told the Wall Street Journal in an article last month. “There is certainly the potential for the number of lawsuits to increase considerably.”

In addition, new state laws that legalize marijuana typically protect medical marijuana users from employment discrimination.

This and other factors will produce “conflicting decisions from the courts,” according to our source, who then made the connection to concussions and collegiate athletics.

“While there would be some room for judicial deference, all other things being equal, to a workplace rule that was related to workplace safety, or in some cases simply employer prerogative, I think all bets are off when the workplace rule places the worker at an increased risk of injury.

“Think of this as any other workplace safety issue.  Any time the nature of the employment or job assignment places a worker at an increased risk of injury, such as operating a band saw, an employer is required to give an employee the necessary training to operate the equipment safely, AND the necessary personal protective equipment.  So you can have judicial deference to a workplace rule against wearing earplugs if all things are equal. But if the employee works in a power plant where the sound levels subject a worker to a risk of hearing loss, you cannot prohibit ear plugs, and in fact, you may be required to provide them.”

‘Prohibiting a Player from Using Marijuana Is the Same as Prohibiting a Player from Using a Helmet’

“In the case of football, the player is subjected to an increased risk of concussion and associated complications. All things are NOT equal.  Arguably, an employer would have to demonstrate a compelling reason for prohibiting access to personal protective medication.  It would be like prohibiting a nuclear plant worker from using potassium iodide or prohibiting a Peace Corps worker from being vaccinated against dengue fever or some other exotic disease.   My god, I’m pretty sure the British Foreign Service drank Gin and Quinine to prevent malaria.

“Unless there is science documenting that the dosage of THC subjects the player to an increased risk of injury, which there is not to my understanding, then the Colorado case has no application to the concussion issue for a football player.  I realize, in college, the players are not employees. But the principles of safety are not that different. The point here is that prohibiting a player from using marijuana is the same as prohibiting a player from using a helmet.  Finally, the Colorado court relied heavily upon the fact that it was illegal under Federal Law.  The Justice Department just announced that in states that permit medical marijuana, it will NOT enforce federal law against individuals who use medical marijuana.  So, if the (aforementioned) case below were decided today, to the extent that the court relies upon Federal Law, I would expect the case below would be decided differently.”

In essence, the “emerging, new frontier of liability for colleges and universities” in the case of medical marijuana usage is tied to three powerful trends – societal acceptance around the medical use of marijuana, growing recognition of the dangers of sports concussions and provocative research that indicates marijuana can mitigate the risk on concussion as well as speed the recovery from concussion.

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