Amani Bledsoe (“Bledsoe”) is a football student-athlete at the University of Oklahoma (“OU”). On or about October 5, 2016, Bledsoe submitted for a random drug test administrated by the NCAA. On October 19, 2016, Bledsoe was informed that he tested positive for clomiphene (“Banned Substance”), which is a selective estrogen receptor modulator. The Banned Substance is commonly marketed as Clomid and is used to help treat infertility in women. Some male athletes have used Clomid to block estrogen production and, thus, achieve muscle gains. The Banned Substance is considered a banned substance pursuant the NCAA regulations.
Bledsoe provided all of the supplements and vitamins he was taking for review by a testing lab. The testing lab determined that a supplement Bledsoe was taking contained the Banned Substance despite the fact that the label did not disclose the Banned Substance. On November 28, 2016, Bledsoe submitted a written appeal to the NCAA arguing that he was not at fault for the ingestion of the Banned Substance because he was not aware of its existence. On December 1, 2016, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (“Committee”) held a hearing on Bledsoe’s appeal. On December 5, 2016, the Committee denied Bledsoe’s appeal.
On August 24, 2017, Bledsoe filed suit against the NCAA in Cleveland County, Oklahoma (i.e., Norman, Oklahoma and the home of OU). Bledsoe set forth claims under Article II, Section 7 of the Oklahoma Constitution arguing that the NCAA committed substantive and procedural due process violations and also requested injunctive and declaratory relief. In short, Bledsoe argues that the NCAA’s drug testing policy is unconstitutional because it administers “damaging, life-changing, quasi-criminal punishments to student-athletes on a strict liability basis without any type of knowledge, intent, or mens rea component.” Bledsoe, therefore, requests reinstatement of his loss of one year of eligibility, attorneys’ fees, and costs.
As is common, the NCAA moved to dismiss Bledsoe’s complaint, which was denied by the district court in November 2017. The NCAA has since filed its answer and argued, primarily, that the NCAA is not a state actor and, thus, not subject to review under the Oklahoma Constitution. The NCAA makes this argument based on the United States Supreme Court’s ruling in NCAA v. Tarkanian where the Court concluded that the NCAA is not a state actor. Additionally, the NCAA argues that Bledsoe does not have a protected fundamental right to play football. This argument is similar to an argument the NCAA won before the Texas Supreme Court in NCAA v. Yeo. In that case, the student-athlete argued that she had a fundamental right to compete in intercollegiate swimming. The Texas Supreme Court concluded that the student-athlete did not have a fundamental right to participate in extracurricular activities.
The NCAA has also been successful in drug testing cases. The California Supreme Court ruled in Hill v. NCAA that the NCAA’s mandatory drug testing program complied with the privacy requirements in the California Constitution. In that case, the NCAA argued it had a duty to protect the health and safety of student-athletes. In Hill v. NCAA, the California Supreme Court concluded that the NCAA has legitimate regulatory objectives in conducting testing for proscribed drugs. Further, the California Supreme Court ruled student-athletes have a lesser expectation of privacy because they already “undergo frequent physical examinations, reveal their body and medical conditions to coaches and trainers, and often dress and undress in same-sex locker rooms.”
Many of these cases were decided well over twenty (20) years ago. It will be interesting to see whether the Oklahoma courts have a different view of the law as the NCAA has expanded and grown over the last twenty (20) years.