NCAA Compliance 101: Understanding the NCAA’s Drug-Testing Appeals Process
By Justin Sievert
The NCAA’s drug-testing program is designed to promote fair and equitable competition in college athletics and to deter college athletes from using performance-enhancing drugs or other banned substances. As part of the program, the NCAA provides year-round, championships, and bowl game drug testing.
The NCAA drug-testing program involves urine collection and a laboratory analysis of banned substances that is approved by the NCAA Board of Governors. This list of banned substances involves substances that are designed to enhance performance and substances, which potentially harm the health and safety of the athletes. Once testing is completed, athletes will typically receive his or her results within 15-20 business days. If an athlete tests positive, the NCAA’s current testing administrator will provide the applicable college or university the name of the athlete who tested positive along with the banned substance found in the athlete’s urine sample. The athlete’s B sample is then tested. If the B sample is positive, the administrator will notify the institution, and the athlete will be declared ineligible.
The penalties for a positive test are as follows:
- Performance Enhancing Drug: loss of one full year of eligibility for a first-time offense and a withholding penalty from competition of one year from the date of the test. A second positive PED test results in the loss of all remaining NCAA eligibility.
- Cannabinoid Class: withholding penalty from competition for 50% of the season in all sports which the athlete participates. A second positive cannabinoid test results in loss of one full year of eligibility for a first-time offense and a withholding penalty from competition of one year from the date of the test.
Furthermore, if an athlete is involved in tampering with an NCAA drug test, the athlete will be declared ineligible for a period of two calendar years from the date the tampering occurred. An athlete who misses or refuses to provide a sample will be penalized as if he or she tested positive for a PED.
A request for an appeal must be made by the institution to the drug-testing administer within two business days of the B test positive confirmation. The institution then may submit appeal documentation within 45 days of their request. Documentation should include:
- A summary outlining the grounds of the appeal; and
- A summary describing the institution’s drug-education program; and
- If banned substances were detected, a list of supplements the athlete has taken within the last 365 days.
Once documentation is submitted, a hearing is held via telephone conference by at least three members of the NCAA Committee Competitive Safeguards and Medical Aspects of Sports drug-test appeal subcommittee. NCAA staff members, NCAA drug-testing consultants, and NCAA legal counsel may be present during the telephone conference, but do not have an appellate vote. The institution and athlete may have any party attend the telephone conference, including legal counsel. The institution must have the director of athletics or an appropriate designee and the athlete participate. The telephone conference typically begins with a statement from the institution followed by any information the institution, the athlete, or their legal counsel wish to present. The panel then provides the opportunity for all parties to ask and respond to questions. After the presentation, the institution, athlete, and NCAA drug-testing consultants will be excused, and the panel will deliberate and render a decision.
Grounds for an Appeal and Penalty Mitigation
While the grounds for an appeal are not limited, the most common challenges relating to overturning a positive finding are procedural or knowledge-based.
A procedural challenge relates to the collection or testing of the athlete’s samples where the institution or athlete demonstrates that it is more likely than not a substantiated problem with the collection or testing procedures that materially affected the sample’s integrity.
While an athlete is presumed responsible for all substances consumed, knowledge challenges have been successful on two grounds:
- Knowledge challenges have been based on the athlete being unaware they had been administered a substance by another person, and it was later determined the substance contained a banned ingredient. The key factor here is demonstrable proof he or she both did not know and could not reasonably have known or suspected (even with the exercise of utmost caution) that he or she had been administered by a third party a substance that is later found to have contained a banned ingredient.
- Knowledge challenges have been successful based on the institution or athlete providing proof the athlete asked specific and reasonable questions about a particular substance, medication, or product of the appropriate athletics administrator and the athletics administrator erroneously assured the student-athlete that the substance does not list a banned ingredient that ultimately did.
If an institution or athlete is unable to provide a procedural or knowledge-based challenge that overturns an appeal, they may be able to reduce the penalty based on various mitigating factors. For example, if an institution’s drug-testing program was determined to be inadequate and this directly impacted the athlete’s decision to take a substance or the athlete’s consumption of a substance was due to factors beyond the athlete’s control.
A reduction of a penalty may not be based on the type/amount of the banned substance the athlete tested positive for, family hardship or past use issues, the athlete’s character or track record, the athlete’s remorse, or the degree to which the banned substance impacts the athlete’s performance.
In addition to NCAA mandated testing, individual schools may also test for banned substances as a part of their own athletically-administered drug testing programs. If you have tested positive for a banned substance as part of your own institution’s drug-testing program, the appellate process will follow the policies and procedures established by that program. Once your school is responsible for determining applicable penalties for a testing offense, they are also responsible for enforcement. A failure by your school to enforce a drug-testing offense penalty may result in an NCAA infraction.