Courts to Rule on Two NCAA Drug Test Cases

Simone LeVant had only modest success as a collegiate diver but her impact on college sports may be felt for a long time to come.

LeVant, a recent Stanford University graduate, challenged the NCAA drug testing policies during her senior season. She felt the program -- which requires testing before championship events and bowl games -- invaded her privacy guaranteed under the California Constitution.

Last winter, she received a temporary restraining order from a Santa Clara County Superior Court judge barring the NCAA from requiring her to be tested in order to compete in the collegiate diving championships.

LeVant didn’t qualify for the championships so her legal showdown on testing failed to weave its way through the state court system.

But the questions she raised remained and this year two other Stanford athletes and the university itself joined in a case asking a Superior Court judge for a temporary restraining order to halt testing on the school’s campus until it can be determined whether the NCAA drug testing policy violates California’s constitution.

The request by both athletes and school will be ruled on Friday, Aug. 21. If the order is granted, Stanford athletes will be able to start competition this fall without signing the NCAA-required drug testing consent forms.

On the same day, in a related case, a federal court judge in Seattle is expected to rule whether he will grant the NCAA’s request to move from state court to federal court a lawsuit challenging both the University of Washington drug testing policy and the NCAA’s on privacy grounds.

While the principals in the cases do not agree on much, they do agree that Aug. 21 will be an important day for the future of the NCAA’s drug testing program.

“I think everyone agrees that these cases are important,” said Frank Uryasz, an NCAA drug testing official. “The (NCAA) program was well-researched when it was put into place (January 1986). We have always felt it was defensible at the federal level. It is on the state level that we apparently have run into problems.”

The Stanford case centers on a privacy challenge from two athletes -- women’s soccer co-captain Jennifer Hill and starting football linebacker J. Barry McKeever. The pair contend, as did LeVant, the NCAA policy is illegal.

“The legal arguments are the same as they were with Simone,” said Susan Harriman, a San Francisco attorney who is handling the athletes’ case for the ACLU. “We’re confident because we got the TRO (temporary restraining order) once before. It will come down to the judge deciding who will be damaged more by the TRO.

“If it is not granted, then Jennifer and Barry cannot compete this season. If it is granted, they will not have to sign the consent form for testing that may not ever take place. The harm to the NCAA is non-existent.”

The university joined the athletes’ suit on July 20 to protect itself from the NCAA.

“We find ourselves caught in the middle,” Stanford law professor Jack Friedenthal said at the time the university joined the suit. “If we use a player under the temporary injunction and for some reason he loses the case, then NCAA says it will punish us for using an ineligible player. We are just trying to have our day in court and ask that the NCAA rule (on ineligible players) not apply to this case.”

In Seattle, two University of Washington athletes -- Alan Burch, a member of the men’s crew team and Elizabeth O’Halloran, a track athlete -- filed a lawsuit with the backing of the ACLU claiming the University of Washington’s program was a violation of privacy rights under both the United States and state of Washington constitutions.

On July 23, King County Judge George T. Mattson ruled in favor of the students and ordered the NCAA to become a party to the suit. Mattson issued a temporary restraining order against the NCAA from leveling penalties against UW or its athletes for not complying with the drug test.

But because the athletes based a portion of their lawsuit on federal grounds, the NCAA has been allowed to ask a federal district judge to consider its request to have restraining order lifted. The judge will rule on Aug. 21 whether he will consider the case.

Other legal challenges to campus drug testing are pending.

At Northeastern University in Boston and the University of Colorado in Boulder, Colo., athletes have gone to court to challenge their schools’ drug testing policies. In both cases, however, the NCAA policy is not directly involved.

Northeastern track athlete David Bally went to court in January to wage a privacy challenge to the university’s policy of testing all its athletes. The junior lost in his attempt to obtain a restraining order and awaits an appeal to the Massachusetts Supreme Court.

“This puts me in a position where I’m not going to run for a long time,” said Bally on the day his restraining order was rejected. “I still think we have a strong case and will win eventually. I’ll just sit out until it’s resolved.”

The ACLU filed lawsuit last October on behalf of University of Colorado cross country runner Dave Derdeyn, challenging the school’s testing policy.

However, David Miller of ACLU says the case may be settled out of court. He said the school recently changed its policy, and now requires a rapid-eye movement initial screening and another individualized suspicion profile test as a prerequisite for administering the drug test.

“If in fact they have changed this policy to require individual suspicion and some reasonable cause to do a drug test, then we may be relatively close to settling the matter,” Miller said.

The NCAA did win a challenge to the testing program last year in Louisiana.

Just prior to the 1987 Sugar Bowl, LSU defensive end Roland Barbay was ruled ineligible to play against Nebraska because he tested positive for steriods. Barbay appealed to the federal court asking for a restraining order that would have allowed him to play. On Dec. 31, U.S. District Court Judge Robert Collins refused to grant the injunction.

“The case in Louisiana is a little different than the ones currently pending, but I still think it is very important,” Uryasz said. “The appeal of the test result was unsuccessful. The court upheld the legality of our testing.”

While the NCAA won the LSU case, it may ultimately lose the war.

“The more you challenge something, the more likely you are to get a favorable decision,” said former NFL All-Pro Alan Page, now an attorney with the Minnesota Attorney General’s Office. “A lot depends on the court the case is in. State courts are more likely to rule in favor of privacy than federal courts.”

The NCAA drug testing program first came up for a vote before the organizations member schools in 1985. However, the initial policy wanted to have random drug testing administered by the NCAA during the season.

“The original proposal wanted testing done during the season and not just in the post season,” Uryasz said. “There was a strong resistance to the plan because schools did not want the NCAA on their campuses during the season.”

In 1986, the NCAA finally got a modified proposal passed allowing for testing before championships or bowl games. The athletes also were required to sign consent forms for the testing before the season begins.