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Anabolic Steroids: A Look at Potential Drug Testing Legislation and its Constitutional Implications.

Ramin Tohidi

Class of 2006

May 2006

This paper is submitted in satisfaction of the course requirement for Food & Drug Law with Professor Peter Hutt and the third year written work requirement.


Anabolic steroid use among American athletes has been the subject of much debate in the last half-century. Despite evidence tending to show significant health risks associated with steroid use, there remains considerable speculation as to its ultimate effects. And whether Congress should step in and provide uniform rules governing the testing of professional athletes is a question that still remains. Through this paper I intend to provide a historical account of the steroid “epidemic” and a look at the constitutional implications of Congress’s recent proposals to bring steroid testing in professional sports under its purview. In the first half of this paper I provide an outline of the development of anabolic steroids on a commercial level, as well as a short explanation of the negative and positive effects steroids can have on the body. In the final section, I offer a overview of the current testing regime in Major League Baseball, a discussion of Congress’s reasons to legislate in this area, and an analysis of the constitutional problems Congress will likely face if it chooses to become involved.


Anabolic steroids first came on the scene in the years leading up to World War II, having its roots in the discovery of testosterone as a hopeful wonder drug.[1] When the American medical community began to take notice, the use of testosterone and anabolic steroids made their way into the elite sports.[2] In the 1950s, steroid use among American athletes began to take hold, and it was not until the end of the next decade when various sports organizations began to question the legitimacy of their use in sports.[3] For whatever reason, the response to steroid use has been a slow one, but a growing movement against it has begun to develop in recent years with the increasing prevalence of steroids in schools and in the major American sports leagues, most notably Major League Baseball. This paper is intended to provide an historical account of these developments, followed by an in-depth analysis of the constitutional implications of Congress’s recent efforts to curtail steroid use among American professional athletes.


A. Introduction

As one may suspect, the use of performance-enhancing substances dates back many centuries. To be sure, athletes participating in the Olympic Games in Ancient Greece were reported to have “eaten special foods and taken special medicines to increase their ability to perform.”[4] Similarly, athletes in the third century B.C. believed that eating hallucinogenic mushrooms would aid in mental preparation before competition, and that eating sesame seeds would increase long-distance endurance.[5] Moreover, gladiators in Ancient Rome used various stimulants to “combat fatigue and pain while fighting.”[6] Thus, for many centuries, competitors have “spent much time trying to improve their performance ‘not only by studying the technique of their particular sports, but also by attending to their physical condition, [and] experimenting with their diet.’”[7]

Certainly this mentality persists today. In fact, “during the last few decades this desire to win has almost completely overshadowed the negative side effects of performance enhancing drugs.”[8] A poll taken by Dr. Gabe Mirkin of a sample of athletes illustrates this fact. In response to the question, “If I could give you a pill that would make you an Olympic champion—and also kill you in a year—would you take it?” over half of the one hundred athletes asked responded affirmatively.[9] Doctor Robert Goldman repeated this poll with a different sample set: “I asked [these] top world-class athletes...If I had a magic drug that was so fantastic that if you took it once you would win every competition you would enter, from the Olympic decathlon to Mr. Universe, for the next five years, but it had one major drawback—it would kill you five years after you took it—would you still take the drug?” One hundred and three out of one hundred and ninety eight said that they would.[10]

While the desire to win may be sufficient to explain the prevalence of steroids and other performance-enhancing drugs in professional sports, there is arguably an inherent conflict in possessing this form of motivation and being capable of having this desire fulfilled in an “unsportsmanlike” manner (i.e., through the use of performance-enhancing drugs). However, there is at least one compelling rationale explaining how a competitor would be able to remain emotionally satisfied with her accomplishments even when her victory did not come without the use performance-enhancing drugs.

Athletes may believe that the use of these drugs is so widespread that they are incapable of gaining an unfair advantage through their use. Rightly or wrongly, these athletes may understand that those competitors who have been successful have only been so with the use drugs like steroids. That is, they may believe that the base-line of competitive performance incorporates the use of drugs, and that, in order to remain competitive, they are best advised to follow suit. Thus, beyond this prerequisite to competing successfully with others, the use of drugs does not confer an advantage on those who take them. In other words, if pervasive enough, the use of performance-enhancing drugs does not skew competition, but rather merely increases the absolute level of performance across the elite, while still leaving room for each athlete to distinguish herself from the rest. Thus, so long as the individual athlete using performance-enhancing drugs has become convinced of this circumstance, she will have no reason to discount the magnitude of her accomplishments to reflect the fact that she has sought the aid of one or several performance-enhancing drugs.[11]

The more certain we are that the foregoing rationale is legitimate, the less reason we have to disapprove of the use of performance-enhancing drugs. One looking for another rationale may find it, however, in the argument that they are “artificial.” Unfortunately, this position is perhaps less convincing than others. At what point do we draw the line of artificiality? One can make a convincing argument that it is “artificial” to lift weights or exercise. After all, engaging in these activities certainly alters one’s capacity to compete athletically beyond what would naturally be the case in their absence.[12]

And certainly the argument cannot be that steroids are artificial because they do not occur naturally in the body. In fact, steroids are produced in the body, secreted by the adrenal glands and the testes. However, even if this were not the case, this argument would fail to rationalize the banning of one type of substance not occurring naturally in the body (i.e., a performance-enhancing drug), while many other such substances, such as caffeine, are ingested legally on a daily basis.

Perhaps the opposition to performance-enhancing drugs lies in the belief that their use actually skews competition because there is truly a lack of universal access. However, “if restricted access, because of limited monetary resources, is the basis for steroids...and other drugs being banned, a counterargument is illustrated by the issue of high altitude training versus blood doping and erythropoietin.”[13] That is, “although athletes may not be able to afford doctors and equipment for blood transfusions or drug injections, neither can all athletes easily afford to travel to elevations of seven thousand feet and higher above sea level to train and increase their red blood cell count.”[14]

Not only are the circumstances such that the “access” argument fails the straight-face test, there is an inherent line-drawing problem that exists here as in many other contexts. If access is the only reason, there is no legitimate rationale behind banning one athletic aid of non-universal access while allowing thousands others. To be sure, this argument taken to its logical extreme would arguably require that each athlete be given the same opportunities and work-out schedule from the day they are born. Perhaps it should even become illegal to have a superior genetic make-up relative to one’s peers.

So, why are performance-enhancing drugs like steroids banned and tested for? Well, for one, those in positions of power may not agree with the flaws I have discussed regarding the foregoing rationales. Even so, steroid use may be banned merely because of medical evidence showing the negative impact it can have on the body. This, in addition to its growing prevalence among the nation’s youth, is perhaps the strongest rationales behind the opposition to their use. But how legitimate are these concerns?

B. Assessing Steroids’ Effect on the Athlete

Examining the legitimacy behind a ban on use and the imposition of testing for athletes requires first a critical look at the positive impact the drug has on performance, followed by an analysis of the negative effects the use of the drug has on the human body. I take these two in turn.

1. Steroids’ Effects on Performance[15]

As one author has put it, “...there is a substantial body of evidence that will stand very close scrutiny to indicate that anabolic steroids will not contribute significantly to gains in lean muscle bulk or muscle strength in healthy young adult males.”[16] To be sure, the “exact effects of anabolic steroids on the athlete and athletic performance remain controversial.”[17]

There is reason to believe that steroid use has psychological effects beneficial to performance. Such personality changes include “an increased sense of well-being, increased energy, and increased aggressiveness.”[18] There have also been many studies discussing the impact of steroid use on physical strength, and despite sentiments such as the one reprinted above, there are several examples of those who believe that anabolic steroids do in fact have a positive impact in this regard.

Haupt and Rovere have concluded that “anabolic steroids will consistently result in significant strength increases” so long as several guidelines are followed.[19] According to these authors, success will result if (i) the steroids are “given to athletes who have been intensively trained in weight lifting immediately before the start of steroid regimen and who continue this intensive weight training during the steroid regimen;” (ii) if the “athletes maintain a high protein-diet;” and (iii) if the “changes in the athletes’ strength are measured by the single repetition-maximal weight technique for those exercises with which the athlete trains”[20] —in other words, the efficacy of steroids should be determined by examining “their effect on the ability to increase the maximal weight lifted in a single repetition of a lifting exercise.”[21] To be sure, “how this benchmark correlates with actual performance in a variety of competitive sports remains highly speculative.”[22]

According to Wadler and Hainline, “[m]uch of the controversy regarding anabolic steroids’ effect on performance results from retrospective efforts trying to compare different analyses using different study designs.”[23] Moreover, they contend, “if any degree of athletic enhancement is to be attributed to anabolic steroids, a number of explanations are plausible.”[24] These include, (i) “increased aggressiveness and motivation,” (ii) “an anticatabolic effect (a reversal of the catabolic effect of glucocorticoids released during periods of stress associated with training),” and (iii) “enhanced utilization of protein resulting in a positive nitrogen balance.”[25]

There are other factors militating against the negative opinions of scientists such as Ryan. Donohoe and Johnson provide a couple of these arguments:

Because they are human experiments, the studies conducted on athletes have to be approved by local ethical committees. In order to get approval the clinician conducting the study has to agree to use doses that are proven to be safe. Consequently, most of the reported trials have used doses that are well below those normally used by the athletes as part of their training programme. Hence it might be that much higher doses of steroids have the anabolic effect that athletes claim, whereas scientists are unable to show this with their lower doses...

In addition to dose differences, the procedures for steroid use by athletes vary markedly to those used in clinical studies. Many weightlifters, for example, use a process called ‘stacking’, where different types of steroid are used concurrently.

There may be, however, reason to believe that anabolic steroids impede performance because of the increased water weight resulting from enhanced salt retention due to the steroids.[26] This is especially true in those sports where “coordinated muscular movement and flexibility are required.”[27] Of course, the negative effects associated with water retention may be entirely outweighed by the performance enhancing effects of the increased muscle growth. And, as to adolescents, while anabolic steroid use does promote “acceleration in skeletal and muscular growth,” height may be stunted by the premature closure of the epiphyseal plates occurring as a result of the increased levels of testosterone.[28]

2. The Negative Effects of Steroid Use

To be sure, any benefit that might be derived from anabolic steroid use in athletic competition must be measured against its actual and potential side effects. There is certainly some confusion as to exactly what side effects of anabolic steroid use exist, and how severe they actually are, but reports have indicated that many adverse effects of using anabolic steroids exist: liver function abnormalities, peliosis hepatic, benign and malignant liver tumors, Wilms’ tumor, prostate adenocarcinoma, hypogonadotropic hypogonadism, azoospermia, feminization (enlarged breasts, high-pitched voice), decreased high-density lipoprotein, increased low-density lipoprotein, hypercholesterolemia, behavioral changes/psychiatric disorders, impaired humoral immunity, acne, hair loss, and premature epiphyseal closure in prepubescent children.[29]

There have been several studies showing liver function abnormalities resulting from anabolic steroid use.[30] Few data are available, however, indicating whether these changes are reversible once the individual has stopped using of the drug.[31] Peliosis hepatic—a rare condition characterized by blood-filled cysts in the liver—has been reported in twenty-three cases studying the effects of steroids used for periods of greater than 6 months.[32]

Anabolic Steroid use has also been linked to tumor growth in both the liver and kidneys: “one report describes 36 benign and malignant liver tumors in patients who received anabolic steroids for more than 24 months...[a]nother describes hepatocellular carcinoma in an athlete who had taken anabolic steroids intermittently over a 4-year period.”[33] In addition, Wilms’ tumor,[34] adenocarcinoma of the prostate,[35] and AIDS[36] have been linked to anabolic steroid use.

Anabolic steroid use of longer stretches of time has frequently resulted in the “lowering of plasma protein-bound testosterone.[37] Surprisingly, steroids also produce “feminizing side-effects in males, most notably...high voice.”[38] However, this effect will be reversed once one stops using the drug.[39] “A great deal has been said about anabolic steroids and the male reproductive system; much of it is unfounded, some of it is undoubtedly true and should be seriously considered.”[40] For one, steroids reduce normal testosterone production, “often to the levels seen in castrated males; in addition spermatogenesis (sperm production) frequently ceases.”[41] Without natural levels of testosterone production, “there is a danger that the male reproductive system may waste away.”[42] However, “no athlete has been found to exhibit permanent changes to the reproductive system as a result” of anabolic steroid use.[43] But, “few studies have been conducted on athletes who have taken steroids for long periods,” and thus, “the question of irreversible changes must remain open.”[44]

Additionally, anabolic steroid use also has at least two effects on sexual behavior.[45] First, testosterone maintains the physical structure of sex organs, and as its level decreases as a result of anabolic steroid use, the sensitivity of the penis is reduced.[46] Second, because testosterone acts to increase sexual urge (also known as libido), the use of steroids reduces the desire among men to perform sexually.[47]

When taken in large quantities,[48] steroids cause large reductions in high-density lipoprotein cholesterol and increases in low-density lipoprotein cholesterol.”[49] Although the long-term effects on the body of these changes are largely unknown, there has been at least one recent case suggesting a causal connection between anabolic steroid use and myocardial infarction.[50]

There is an additional concern resulting from the use of illegal drugs. “Because they are used without medical supervision, illicit injectable substances are often of suspect origin and are administered in less than ideal circumstances.”[51] Even though “[d]isposable syringes are supposed to be discarded after use,” because of drug users limited access to them, “they are often used more than once and by different people.”[52] Like people who inject heroin, anabolic steroid users are thus at a heightened risk of transmitting and contracting diseases from others.

As one can tell from the foregoing discussion, however, even though there have been many reports indicating a connection between anabolic steroid use and poor health, these studies are far from conclusive of a causal link. In fact, athletes have received “mixed messages” from physicians themselves.[53]

“We just don’t know,” declared recognized steroid expert Dr. Charles Yesalis in an ESPN special on steroid abuse. “Most of what we know was based on clinical anecdotes, individual cases...Many doctors continue to prescribe steroids to their clientele....Dr. Taylor condoned athletes use of these drugs in 1982 by supporting the monitored use of steroids in his book Anabolic Steroids and the Athlete . He noted that “athletes feel that...physicians and sports officials advance the ‘side effect’ argument as...a scare tactic to preserve the ‘purity’ of athletic competition.”[54]

The legitimacy of any stance opposing anabolic steroid use based on the perceived negative impact of steroids on the human body is rightfully tempered by this and other statements indicating that the argument against steroid use is perhaps largely anecdotal and based on societal norms against illicit drug use.

C. The History of Anabolic Steroid Use[55]

The Discovery of Testosterone

Anabolic steroid use has its clearest roots in the medieval practice of treating disease conditions with the use of human and animal organs, referred to as organotherapy.[56] This method was in most use during the Dark Ages, and was characterized by the consumption of bodily substances such as “bile, blood, bones, brains, feather, feces, animal horns, intestines, placenta, testicles, and teeth.”[57] Despite some evidence that these medieval scientists had “considerable comprehension regarding the presence and function of the body’s glands,” organotherapy was in practice “a composite of mysticism, religion, philosophy, and customary dogma.”[58] However, despite the lack of any modern scientific method in this early practice, organotherapy provided the roots for the discovery of many hormones.[59]

Empirical knowledge regarding the male sex hormone dates even further back to ancient times. Around 1400 B.C. , an Indian physician recommended the use of testicular extracts as a cure for impotence in men.[60] Years later, around 300 B.C. , Aristotle examined the effects of castration in different animal species in his work, Historis Animalium .[61] Then, in 1848, German scientist Berthold reported the findings of an experiment in which he removed rooster testes and surgically implanted them in two castrated roosters, both of which “remained male in regard to voice, reproduction instinct, fighting spirit, and growth of comb and wattles” as a result of the surgery.[62] Brown-Sequard, a prominent French scientist, continued this research with a unique experiment in which he removed the testicles of dogs and guinea pigs, smashed them, brewed them in a salt solution, and injected himself with this “testicle stew.”[63] He found that the experiment had rejuvenated his deteriorating health, increased his physical strength and endurance, improved his bowel system, and enhanced his mental capacity.[64]

The first documented proof of the existence of a male sex hormone derived from the testicles came in 1926, when Professor Fred C. Koch and his medical student, Lemuel C. McGee conducted an elaborate experiment at the University of Chicago.[65] They started their experiment by obtaining 40 pounds of bull testicles, stewing them in benzene, alcohol, and acetone solutions, providing them with 20 mg of a fat-soluble extract.[66] They then selected a castrated rooster with deteriorated combs and wattles and injected the rooster daily for two weeks[67] At the end of this term they found that the rooster’s combs and wattles turned redder and brighter, much like a normal rooster, and after conducting the experiment again to verify the results, they recoded their findings.[68] Three years later, Koch and Dr. T.F. Gallagher repeated this experiment with similar results, but this time with castrated men instead of roosters as the subjects.[69] With these findings, “momentum was gathering in the scientific world to further isolate, identify, and perhaps synthesize the male sex hormone.”[70]

Clinical Experimentation with Testosterone

Interestingly enough, one of the first and certainly most famous anabolic steroid user was Adolf Hitler.[71] In the records of his personal physician, one will find reports that Hitler was given injections of the “derivatives of testosterone” for a variety of presumed mental and physical ailments.[72] In fact, within World War II records there are a number of reports of Nazi scientists experimenting with the effects of testosterone on human prisoners, and several reports also indicate that testosterone and anabolic steroids were possibly given to Nazi troops in order to increase their aggressiveness in battle.[73] Unfortunately these reports were never published, and the results of the experiments are thus unavailable.[74]

In the first half of the Twentieth Century, testosterone was used in several therapies to treat the following problems: hypogonadism,[75] male involutional melancholia and mental disorders,[76] angina pectoris, hypertension, and coronary artery disease,[77] muscular deterioration of older men,[78] and several other miscellaneous conditions[79] .[80] However, after the American Medical Association’s Council on Pharmacy and Chemistry declared that testosterone was “not acceptable for New and Non-official Remedies” in the late 1930s, it became apparent that it was going to be difficult to make testosterone “medically reputable.”[81] As a result, much of the scientific development of testosterone “fell more heavily into the hands of medical scientists of other countries.”[82]

The Synthesis of Anabolic Steroids and Their Commercial Development

As stated earlier, it is believed that the first synthesis of anabolic steroids occurred in Germany during World War II. Despite this, it is generally accepted that anabolic steroids were first created by doctor John B. Ziegler.[83] After learning that Russian athletes were using testosterone at the 1956 World Games, Ziegler developed the first anabolic steroid, and trade-named it Dianabol.[84] In the early 1960s, other companies were synthesizing their own versions of anabolic steroids.[85] By the early 1980s, when the initial patents expired, many more versions were created and mass production began to take hold.[86]

Anabolic steroids are simply artificial derivatives of testosterone intended to provide the anabolic benefits of testosterone while reducing its androgenic effects.[87] “The basic idea behind the development of anabolic steroids was to alter the testosterone molecule so that the anabolic functions were enhanced selectively and the androgenic functions were reduced or alleviated.”[88] Some of the androgenic functions that are intended to be absent in anabolic steroids include: the initial growth of the penis, growth and development of the seminal vesicles, growth and development of the prostate gland, increased density of body hair, development and pattern of pubic hair, increased density and distribution of facial hair, and deepening of voice.[89] Some of the anabolic functions of testosterone that are meant to be enhanced in anabolic steroids are: increased skeletal muscle mass, increased hemoglobin concentration, increased red blood cell mass, enhanced activity of certain cells of the immune system, such as T-lymphocytes, influence on the distribution of body fat, influence on reducing the percentage of body fat, increased calcium deposition in the bones, increased total body nitrogen retention, increased visceral organ size, and increased retention of several electrolytes.[90]

From the late 1950s to the early 1970s, many researchers experimented with efficacy of anabolic steroids to treat a number of diseases. Some of these medical applications were: the treatment of underweight patients, patients with rheumatoid arthritis, surgical patients, patients with osteoporosis, as a growth stimulator for short children, and for enhancement of muscle mass, strength and athletic performance.[91] In most of these therapies, anabolic steroid use proved of either mildly beneficial or inconclusive benefit to those treated.[92]

During this period, several studies were published regarding the efficacy of anabolic steroids in enhancing athletic performance and strength, half of which came out with positive results.[93] Then, in the mid-1970s both the British Association of Sport and Medicine and the American College of Sports Medicine took official positions against anabolic steroid use.[94] The British Association of Sport and Medicine official policy, published after a meeting in 1975, stated that “the only effective way of ensuring optimum performance in any activity is proper programme of training and preparation.... No known chemical agent is capable of producing both safely and effectively an improvement in performance in a healthy human subject.”[95] The American College of Sports Medicine held their own meeting in 1976, and came down with a very similar stance on anabolic steroids.[96] Soon after, other medical and sporting groups, such as the American Medical Association and the Federal Drug Administration, took similar official positions on anabolic steroid use.[97] Over the course of the next decade, however, anabolic steroid use grew to “epidemic” proportions, and as a result it became apparent to scientific organizations dealing with sports medicine that the issue needed to be addressed yet again, and when all was done, these organizations reversed their earlier positions on anabolic steroid use.[98]

Classification as a “Controlled Substance” Under Federal Law

The Controlled Substance Act of 1970, effective in May 1971, is still the governing law dealing with all narcotic drugs. In response to documentation showing an increasingly prevalent black market for anabolic steroids, anabolic steroids were reclassified as a Schedule III controlled substance, thus mandating substantial fines and jail time for their illegal manufacturing and distribution.[99] To this end, the Controlled Substances Act requires manufacturers or distributors of the drug, as well as scientists involved with research on controlled substances, to register annually with the Drug Enforcement Agency.[100] In addition, prescriptions for anabolic steroids cannot be refilled more than six months after the original prescription had been written by a physician.[101]

These proscriptions, as well as the banning of steroid use in most athletic organizations, such as the Olympics, provide the backdrop for the various anabolic steroid testing policies already in place, as well as those recently proposed in Congress intending to govern a number of American professional sports leagues, most notably Major League Baseball. The next part of this paper will provide some background as to these policies, closing with an analysis of their constitutional implications.


As of today, although Congress has legislated in the area of drug testing in several contexts, Congress has yet to involve itself in the drug testing of professional athletes. In this section, I will discuss the possible constitutional barriers that will likely prevent Congress from ever doing so. In an effort to provide some contextual background, I begin by providing a brief overview of the areas in which Congress has already chosen to legislate, the drug testing policy currently in place in Major League Baseball, and a description of one of the bills that has recently been proposed in Congress to regulate the drug testing of professional athletes.

A. Background

1. Current Federal Statutory Regulation of Drug Testing[102]

Even though Congress has yet to regulate the drug testing of professional athletes, it has drafted related legislation elsewhere. For example, in 1966, Congress granted the executive branch the authority to regulate the drug testing of federal employees.[103] As a result, the executive branch now requires that each federal agency establish drug testing programs for employees in sensitive positions, including individuals that “the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.”[104]

Drug testing pursuant to this authority must be conducted in accordance with the terms of the Federal Workplace Drug testing Program.[105] Administered by the Department of Health and Human Services, this regulation requires specimen collection to occur at a designated site, and includes several additional requirements regarding individual confidentiality and the accuracy of the test results.[106]

Congress has also drafted legislation regarding drug testing in public schools. The Drug-Free Schools and Communities Act Amendments of 1989 provides for the use of federal funds by public high schools in their student-athlete drug testing programs.[107] Although not requiring or prohibiting the use of drug testing by public high schools, the law does suggest Congress’s willingness to take part in the drug testing of student-athletes.

2. The History of Drug Testing in Major League Baseball

The use of unlawful steroids has been has been the subject of negotiation between the Players Association and the owners of major league clubs since 2002.[108] According to Executive Director of the Major League Baseball Players Association, Donald M. Fehr, the players are now and have for some time been committed to “rid their game of illegal drug use.”[109]

During the 1980s, the Players Association and the owners undertook “extensive, and at times contentious, negotiations” to confront the growing problem of cocaine use in baseball.[110] The result of these discussions was the first Joint Drug Agreement in major professional sports. Though not containing any provisions regarding randomized drug testing, the “emphasis...was on treatment and prevention, and its provisions were designed to encourage and assist players to address any chemical use or misuse problems they might be experiencing.”[111] According to Mr. Fehr, suspicionless urine testing was supported by the owners, but ultimately left out of that agreement because of the players’ belief that “the testing of an individual, not because of something he is suspected to have done, but simply because he is a member of a particular class, is at odds with fundamental principles of which we in this country are justifiably proud.”[112] For the next twenty years, the Players Association and the owners were able to continue with the program that provided for education, but not punishment, and that included “individual cause-based, not suspicionless” drug testing.[113]

In 2002, with many reports surfacing of the prevalent use of anabolic steroids in Major League Baseball, the Players Association and the owners were forced to address the issue of random suspicionless testing. Under the agreement made in September of that year, the Players Association agreed to anonymous testing in the following season of all players, with an additional twenty percent of the players selected at random for a second unannounced test, with “an agreement calling for an enhanced testing program to be implemented the following year” if five percent or more of the tests turned up positive.[114] These tests were done throughout the season, with no advanced knowledge of the testing provided to the players, and when results showing that the five percent mark had been surpassed, the Players Association announced that a new testing policy, with possible sanctions included, would go into effect the following year.[115]

Under the 2004 for program, players were to be tested at random without knowing when their tests would take place.[116] Players who tested positive for a first time would be assessed by the Health Policy Advisory Committee (HPAC), which would then advise a treatment program to be followed, possibly subjecting the player to further for-cause testing in addition to the random testing required of all players.[117] A second positive test would result in a suspension of 15 days.[118]

This program produced substantial criticism regarding the laxity of its provisions. One major flaw in this policy was the fact that each player would only be tested once, thereby providing each player with the safe option of using steroids after that test came up negative.[119] A second major problem with the program was that it failed to require any off-season testing.[120] Finally, and perhaps most importantly, the policy did not provide a penalty for a first positive test.[121]

Based on these criticisms, the Players Association agreed to renegotiate for a stricter drug testing program.[122] This new program was announced in January of 2005.[123] Under this most recent agreement, effective through 2008, each player will be tested once during each season, with additional players being chosen at random for an additional test throughout the season.[124] Players will not have advance knowledge of their tests, and every player is subject to testing whenever the suspicionless tests are conducted, regardless of the number of times such player has been tested in the past.[125] In addition, there will be random testing conducted during the off-season.[126]

Penalty provisions were also ratcheted up. For a first positive result, the player will be suspended for ten days.[127] Second-time offenders will be suspended for thirty days.[128] A third positive test results in a sixty day suspension.[129] Finally, a fourth positive test will result in the player being suspended for one full year.[130] Each suspension will be without pay and the offending player will be publicly identified.[131]

With this agreement in place, one may rightly speculate as to the need for any congressionally mandated policy. However, there are several possible reasons why Congress may still wish to regulate in this area. Possible rationales may include, for one, a concern within Congress that the penalty provisions under the 2005 agreement may still be too lax. There may also be a worry that the league may fail to implement its own policy to the full extent agreed upon. There is also the possibility that the agreement may not be renewed if the steroid problem is believed to have subsided in the future. Finally, even though this problem has been uniquely damaging to professional baseball, there may be a perceived need in Congress to standardize steroid testing across all professional sports leagues.

3. The Congressional Steroids Hearings of 2005

In the wake of a number of public statements accusing various major league baseball players of using steroids, Congress, on March 17, 2005, held hearings regarding anabolic steroid use in Major League Baseball. According to House Representative Henry A. Waxman, a Democrat from California and the ranking member of his party on the House Government Reform Committee, the main motivation for the investigation is the rising use of steroids among the country’s children.[132] “Kids are dying from the use of steroids,” Waxman said in a March interview on NBC’s “Meet the Press.”[133] “They’re looking up to these major league leaders in terms of the enhancements that they’re using. And we have to stop it.”[134] Another reason behind the hearings, according to Representative Thomas M. Davis III, a Republican from Virginia, and the committee’s chairman, is baseball’s image and integrity.[135] “There’s a cloud over baseball, and perhaps a public discussion of the issues, with witnesses testifying under oath, can provide a glimpse of sunlight.”[136]

Not everyone shares this sentiment. Congressman Paul Kanjorski, also on the House Government Reform Committee, said the following to the Philadelphia Inquirer: “I’m astounded. I think there’s been a total failure to justify why these subpoenas [calling forth various individuals to testify before the Congress] are necessary. It appears to be a publicity stunt. To spend our time calling seven baseball players—maybe I’ve missed something—is this the most important issue in the United States today? Until the committee proves there’s a public crisis, it doesn’t warrant even a committee hearing, no less the issuing of subpoenas.”[137]

Despite this and other concerns, the hearings took place in March of 2005 and received intense public attention. Several major league baseball players appeared to testify before Congress and respond to questioning from the committee members.

Waxman began the hearings by asking the players appearing before him whether they knew of other players using steroids.[138] Although denying ever witnessing any of his teammates using steroids, Rafael Palmeiro said, “I’m sure that players knew about it. You know, I really didn’t pay much attention to it. I was focused in what I had to do as part of my job.”[139] To that Curt Schilling added, “I think there was suspicion. I don’t think any of us knew....”[140] Sammy Sosa responded similarly, stating that he didn’t have any personal knowledge of anyone using steroids.[141] Jose Canseco, the least evasive of any of the panel members, on the other hand, stated not only that he knew of other players using steroids, but that team managers, general managers, and even the owners had knowledge of steroid use among their players.[142]

Representative John Sweeney of New York then asked the players to provide their thoughts on the steroid problem and what, if anything, Major League baseball could do about it.[143] Schilling responded, “I think there needs to be some tough legislation mandated on the level that affects high school athletics, college athletics, and any level of athletics.”[144] “I do believe that we are role models,” Palmeiro added, “and we do have a lot of power in what kids listen to, and the message that we send to them...if we do send the right message, we can help tremendously.”[145]

Representative Elijah Cummings of Maryland then referenced a statement that Canseco had made in his recently published books: “Steroids are here to stay...[b]y the time my 8-year-old daughter, Josie, has graduated from high school, a majority of all professional athletes in all sports will be taking steroids...believe it or not that’s good news.”[146] When asked to respond, Canseco stated that “if Congress does nothing about this issue, it will go on forever. That I guarantee. And, basically, steroids are only good for certain individuals...if you medically need it, if it prescribed to you, I think those were the things I actually spoke about.”[147]

The testimony went on similarly for some time, but Palmeiro at some point made what was, in my opinion, the most enlightening statement of the hearings. In response to a question by Representative Tom Lantos of California regarding whether or not congress should regulate in this area, he stated that he would be in favor of eliminating the steroid problem, and that he “would play under any type of deal that would clean [the] sport and that would make it a level playing field for everyone.”[148] With all the uncertainty regarding the health risks associated with steroid use, perhaps the only legitimate reason to ban its use by making it illegal and requiring random drug testing is to ensure that no athlete, amateur or professional, feels compelled to use steroids simply to be able to compete with others. Yet, in the end, regardless of one’s own position in the matter, is it clear that this issue is the hot topic of the day, and, accordingly, there is a substantial likelihood that congressmen seeking political reward will try to involve themselves in the matter more directly.

4. Proposed Anti-Steroid Legislation

In the wake of the 2005 steroid-testing agreement between the Players Association and the owners, as well as the Congressional hearings that took place that same year, various Congressmen have proposed several bills mandating random drug urinalysis of professional athletes not only in Major League Baseball (MLB), but also in the National Football League (NFL), National Hockey League (NHL), and National Basketball Association (NBA).[149] The most comprehensive of these bills, the Clean Sports Act of 2005, was introduced by Senator John McCain and Representatives Tom Davis and Henry Waxman in May of 2005, and if passed would require players to be tested randomly at least five times per year: three during the season, and two in the off-season.[150] The Bill also requires that tests be administered by an independent agency, and calls for a two-year ban for a first offense—the so-called Olympic Standard—and a lifetime ban for a second.[151]

The proposed bill and its provisions have been called “draconian” by Paul Tagliabue, commissioner of the NFL.[152] Representative Davis, whose committee has held three hearings concerning steroid use, disagrees: “Steroid use is a national public health crisis. This legislation is aimed at not only getting rid of performance enhancing drugs on the professional level, but also sends a message loud and clear to the young people of America: Steroids are illegal. Steroids are dangerous. They can be deadly. And there is no place for them in our sports leagues or our school grounds.”[153] Regardless of the merits of this justification, this proposed bill and others like it are likely to be met with a serous constitutional challenge if enacted into law. In the next section, I discuss what this challenge might look like and how it is likely to result.

B. The Constitutionality of Federal Anti-Steroid Legislation

A plaintiff may have a few constitutional claims with which to attack a federal anti-steroid drug testing policy like the Clean Sports Act of 2005. This section is devoted to a discussion of these possible arguments, starting with a benign yet necessary precondition of establishing justiciability.

1. Establishing Justiciability[154]

The United States Constitution states that power of the federal courts extends only to those “cases” that come before them.[155] The Supreme Court has held that this requirement demands the existence of a case or controversy before federal courts may hear a complaint.[156] Also known as the “standing” requirement, this prevents the courts from hearing hypothetical arguments or issuing advisory opinions.[157]

In the present context, the minimal requirements that result from this limitation will likely have no impact on the ability of a professional athlete—or union representing a group of professional athletes—to bring suit against Congress alleging constitutional harm resulting from the drug testing program it has enacted into law. Because these athletes clearly would have “a personal stake in the outcome,” and would be able to allege an injury that is not speculative or hypothetical[158] —here, a constitutional injury—in order to bring suit, the only prerequisite is that the drug testing program has already been implemented, and it must be the case that the testing of the athlete or athletes challenging the program is likely. [159] Thus, so long as the proposed bill has gone into effect, and so long as the plaintiff bringing suit is an athlete working for a professional league under the bill’s purview, a constitutional challenge could be brought before a federal district court.

2. The Equal Protection Claim

The Constitution prohibits the states and the federal government from denying people the equal protection of the laws. Section 1 of the Fourteenth Amendment provides that “[n]o State shall...deny to any person within its jurisdiction the equal protection of the laws.”[160] Despite the lack of any textual command within the Constitution imposing a similar restriction on the federal government, the Supreme Court has understood the Due Process Clause of the Fifth Amendment to contain “an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.”[161]

Despite its broad language, the Equal Protection Clause does not bar all types of discriminatory conduct by the government. To be sure, otherwise virtually no laws would be constitutional as each law classifies by imposing burdens or conferring benefits on some individuals and not others.[162] Instead, the Equal Protection Clause prohibits the government from making classifications that are not justified by a legitimate governmental interest.[163] Under the Court’s equal protection framework, it is essential to first determine what type of discrimination is at issue.[164] If the law at hand discriminates in such a way that a court should review it under the rational basis standard, then there are almost no explanations in support of the classification that will be found to violate equal protection.[165] If, on the other hand, the law discriminates in a manner that calls for application of strict scrutiny analysis, the law will most likely be found to violate the equal protection clause as the government will be forced to show that the law is narrowly tailored to achieve a compelling state interest, a rather difficult standard to satisfy under prevailing Supreme Court precedent.[166]

In applying the rational basis standard here, “a reviewing court will most likely uphold a testing program as being rationally related to the legitimate state interest of maintaining the health and safety of athletes.[167] Whether a law such as the Clean Sports Act of 2005 would be found to violate the Equal Protection Clause depends on whether it would receive strict scrutiny. A court will apply strict scrutiny analysis in either of two circumstances: the classification targets a suspect class, or it materially impacts a fundamental right or interest.[168] Neither of these rationales for the imposition of strict scrutiny is present here.

Any law such as the Clean Sports Act of 2005 would presumably limit its coverage only to athletes in professional organized leagues like the NBA, NFL, and MLB. Accordingly, because professional athletes do not constitute a suspect class, those affected would be unable to bring suit under strict scrutiny analysis based on a suspect classification argument.[169]

The athletes may, however, attempt to have their claim examined under strict scrutiny by arguing that the law impinges on a fundamental right. Under this principle, if a law classifies individuals in such a way as to prevent the exercising of a right understood by the Court to be fundamental, it will receive strict scrutiny, regardless of the nature of the group discriminated against.[170] There are essentially two types of rights that are considered fundamental under equal protection analysis: due process liberties—that is, rights that qualify for due process protection under the Fifth and Fourteenth Amendments—and equal protection liberties.[171] Neither the right to participate in athletic competition[172] nor the right to work[173] are protected fundamental rights, and therefore, any equal protection claim brought in this context is not likely to receive strict scrutiny analysis.

Thus, because a drug testing law like the Clean Sports Act of 2005 neither targets a suspect class nor infringes on a fundamental right, no court will review it under strict scrutiny, but will rather be forced to evaluate its conformity to the proscriptions of the equal protection clause under rational basis review. And, under this standard, because drug testing is rationally related to a state’s legitimate interest in ensuring the health and safety of professional athletes (as well as others who may follow these roll models’ leads) and protecting the integrity of American sports leagues, it will not likely be held in violation of equal protection principles.[174]

3. The Fourth Amendment Claim

Unlike with equal protection doctrine, it is not entirely clear how a claim based on the Fourth Amendment’s proscription against unreasonable searches and seizures would result. In this section, I provide a detailed analysis of the outcome this claim could be expected to produce.

a. Background

No court in the United States has ever examined the question of whether federal legislation mandating the random drug testing of professional athletes would pass constitutional muster. However, the Supreme Court and several Circuit Courts have addressed the constitutionality of governmental drug testing in two other settings: student-athletes,[175] and employees in heavily regulated industries[176] . Each of these cases involved governmentally compelled suspicionless urinalysis, and all were held constitutional under the Fourth Amendment’s protection against unreasonable searches and seizures.[177] In order to better understand how a constitutional challenge to a bill like The Clean Sports Act of 2005 would result, we must first examine these holdings. Provided below is a brief description of the factual situations in each of the cases.

Skinner v. Railway Labor Executives’ Association , decided by the United States Supreme Court in March of 1989, arose out of a challenge by Railway labor organizations to regulations promulgated by Federal Railroad Administration (FRA) governing drug and alcohol testing of railroad employees.[178] Drug and alcohol abuse by railroad personnel had been a serious concern to the industry from its beginnings. For this reason the railroads had been for several years before this case prohibiting their employees from having alcohol or being intoxicated while on the job.[179]

In July 1983, the FRA had compiled evidence showing that on-the-job intoxication was still a major problem in the industry and that in the previous decade there had been at least twenty-one serious train accidents where alcohol or drug use as a “contributing factor.”[180] As a result, in 1985 the FRA promulgated new regulations mandating the railroads to test all employees after a major train accident.[181] The labor union brought instant suit challenging the constitutionality of this rule.[182]

National Treasury Employees Union v. Von Raab , decided by the Supreme Court on the same day as Skinner , resulted when union officials brought suit against the United States Customs Service to challenge the constitutionality of a drug-testing program to examine urine samples of employees applying for positions involving the interdiction of drugs, the carrying of firearms, and the handling of classified material.[183]

The reason behind the regulation was public safety. The Commissioner of Customs believed that ‘[p]ublic safety demands that employees who carry deadly arms and are prepared to make instant life or death decisions be drug free.’”[184] Moreover, classified material was of special concern, which the Commissioner “determined might fall into the hands of smugglers if accessible to employees who, by reason of their own illegal drug use, are susceptible to bribery or blackmail.[185] With these issues as the backdrop, the Commissioner promulgated the challenged regulations in May 1986.

Under the regulations, once an employee qualified for a position covered by this drug testing program, she would be advised that the final selection depended on a successful drug screening.[186] If desiring to proceed further, an independent contractor would then set an appointment to collect the sample.[187] At the appointment, the employee would be asked to produce the sample within a bathroom stall with a same-sex monitor standing nearby to listen for the normal sounds of urination.[188] The sample would then be taken to a laboratory where it would be tested twice for marijuana, cocaine, opiates, amphetamines, and phencyclidine.[189] Employees who tested positive for drugs and could not provide a reasonable explanation would be subject to dismissal from the Service.[190] After implementation of the policy, a union official brought suit alleging that the drug-testing program violated the Fourth Amendment.[191]

Vernonia School District v. Acton [192] , also decided by the Supreme Court, but in June of 1995, involved a slightly different context: public schools. The drug-testing policy at issue applied to all students wishing to participate in interscholastic athletics.[193] Under the rule, those who wanted to join one of the school’s athletic teams were required to sign a form consenting to the testing.[194] Athletes were tested at the start of each athletic season, and once a week during the seasons the names each of the student-athletes would be placed in a “pool” from which ten percent of the names therein were drawn at random for testing.[195]

After the student was notified of his impending test, he was then required to inform the testers of any prescription drugs being taken, with a copy of the prescription or other verification attached.[196] Next, the student would produce a sample of urine in a bathroom, fully clothed with his back to a monitor standing twelve to fifteen feet behind the student.[197] Girls could produce their samples in a closed bathroom stall with a monitor listening for normal sounds of urination from within the bathroom.[198] Once the sample was complete, the monitor would check it for normal temperature and color and then package it to be sent to an independent laboratory to be tested for amphetamines, cocaine, and marijuana.[199]

The school district followed strict procedures regarding the “chain of custody and access to test results.”[200] If a sample turned up positive, a second test would be done as soon as possible for confirmation.[201] If this test was likewise positive, then “the student [was] given the option of (1) participating for six weeks in an assistance program, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season.”[202] After a second offense, the student no longer had the option to participate in the assistance program, and if the student tests positive a third time, she would be suspended for the rest of the current season and the next two seasons.

In 1991, the respondent in this case, James Acton, signed up for seventh grade football in the Vernonia School District. When he and his parents refused to sign the testing consent forms, he was denied the opportunity to participate in the athletic program.[203] The Actons then filed suit seeking injunctive relief from the school on the grounds that it violated the Fourth and Fourteenth Amendments.

The Seventh Circuit was forced to examine this issue in Schaill v. Tippecanoe County School Corporation .[204] Decided in December 1988, this case, similar to, but decided seven years before Vernonia , dealt with the constitutionality of a school system’s policy of randomly drug testing interscholastic athletes. The policy came about after the spring of 1986, when a basketball coach at McCutcheon High School ordered all sixteen members of his team to provide urine samples.[205] When five of those tested returned positive results, the board of trustees of the Tippecanoe County School Corporation (TSC) began instituting the testing program.[206]

Under the program, much like in Vernonia , students wishing to participate in interscholastic athletics were required to sign a form consenting to random urinalysis.[207] With each student assigned a number, the athletic director and head coach of each team were permitted to institute random tests during the season whereby the numbers would be drawn from a box at random.[208] The student randomly selected was then taken to a bathroom by a same-sex school official, provided with a collection bottle, and allowed to enter a stall to produce the sample.[209] Even though the student was not under visual supervision, the water in the toilet was colored to prevent the student from putting water in the bottle, and the monitor remained outside the stall to listen to the normal sounds of urination.[210] Once produced, the sample was checked for normal temperature and color, and then sent to a private testing facility.[211]

If the sample tests positive under both tests that are administered, the student would be informed and provided with the opportunity to have the sample retested in the laboratory of his choice.[212] The student was also provided with the opportunity to present the athletic director with any exculpatory evidence.[213] If this proved unavailing for the student, he would suspended from participation for a designated percentage of the remainder of the season: a first positive test resulted in suspension from 30% of the athletic contests, a second in a 50% suspension, a third with suspension for a full year, and a fourth with suspension from interscholastic activity for the remainder of the student’s high school career.[214]

In 1987, appellants Darcy Schaill and Shelley Johnson were sophomores in the school district. When they refused to sign the consent form and were therefore barred from interscholastic competition, the students filed suit seeking relief from the school district’s policy on the grounds that it violated the Fourth Amendment.[215] As this case was decided before Vernonia , the court was forced to apply the then-existing precedent. Not surprisingly, however, the case came out much the same way.

The Seventh circuit revisited this issue, though not in the public school context, in 1991 when it decided Dimeo v. Griffin .[216] This case examined the constitutionality of rules promulgated by the Illinois Racing Board requiring jockeys to submit to random drug testing.[217] Before presenting its holding, the court examined the horse racing industry, and, in particular, the fact that, and reasons why, it has traditionally been subject to heavy state regulation.

According to the court, horse racing has typically been heavily regulated because of three reasons: the danger it presents to jockeys, the fact that it fosters substantial gambling activity, and that it has an “unsavory” reputation stemming from a pronounced legacy of “fixing, cheating, horse doping, illegal gambling, and other corrupt practices.”[218] The Illinois Racing Board in particular, the court found, had a two main concerns regarding the use of illegal drugs by jockeys and other horse racing participants. First, the Board was concerned with the personal safety of those participating in the sport. Second, because Illinois earns “tens of millions of dollars” in taxes from legal betting, there was a worry that such revenues would drop if the public had reason to believe that the races were not fair due to drug use by jockeys and other participants.[219]

Based on the foregoing, the Board adopted the challenged rules in 1988. Like the regulations at issue in the other cases discussed in this paper, the individual being tested was permitted to give his sample from within a private stall, with a representative listening in for the normal sounds of urination. Shortly after its implementation, a class action suit on behalf of these participants was instituted to challenge the regulation’s constitutionality.[220]

There are several other relevant cases, but their fact patterns largely resemble that of those just described, and each of the courts ultimately based their decisions on a balancing inquiry meant to examine the reasonableness of the challenged action. As it turns out, most of such regulations—and, in fact, all in the cases described above—have been upheld because, as the courts examining them concluded, the states’ interest behind the rules outweighed the rules’ impact on the plaintiffs’ legitimate expectations of privacy.

b. Fourth Amendment Reasonableness: Balancing the Interests

In Skinner , the Supreme Court for the first time held that government-compelled drug testing of urine constitutes a “search” subject to the demands of the Fourth Amendment.[221] And as the Court later articulated in Vernonia School District v. Acton , “the ultimate measure of the constitutionality of a governmental search is “reasonableness.”[222] In the criminal context, where a government official conducts a search to obtain incriminating evidence, the Court has held that reasonableness requires that such official obtain a judicial warrant based on probable cause.[223] However, a warrant is “not required to establish the reasonableness of all government searches, and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either.”[224] As the Court said in Vernonia , a search can still be constitutional even without probable cause “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”[225] Such “special needs” were found in Vernonia ’s public school context, where the warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed.”[226]

Thus, because the constitutionality of a drug testing law like the Clean Sports Act of 2005 does not involve obtaining evidence of criminal activity, and because “there was no clear practice, either approving or disapproving the type of search at issue,”—here the randomized urinalysis—“at the time the constitutional provision was enacted,”[227] in order to determine reasonableness under the Fourth Amendment, it is only necessary to balance the intrusion of the search on the individual’s Fourth Amendment right against its promotion of legitimate governmental interests.[228]

i. The First Factor: The Legitimate Expectation of Privacy

Within this balancing framework, the first factor to be considered is the “nature of the privacy interest upon which the search...at issue intrudes.”[229] Not all “subjective expectations of privacy” count, however, as the Fourth Amendment protects only those [privacy interests] that society recognizes as “legitimate.”[230] What is considered a legitimate privacy interest depends, of course, on the context of the case, and in order to evaluate the privacy expectation at hand one needs to examine the circumstances behind the intrusion.[231]

The Court in Vernonia found that the privacy expectations of the school-children plaintiffs to be rather small because of their age and their commitment “to the temporary custody of the State as schoolmaster.”[232] The Court also found important the accompanying fact that public school children are routinely subject to medical and physical examinations in order to ensure their own health and that of their classmates.[233] “[S]tudents within the school environment,” the Court continued, therefore, “have a lesser expectation of privacy than members of the population generally.”[234]

Furthermore, as the Court stated, student-athletes, have an even smaller expectation of privacy than that of students generally.[235] As the Court stated, “[s]chool sports are not for the bashful. They require ‘suiting up’ before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.”[236] Moreover, student-athletes generally subject themselves to additional regulation in order to participate in school sports—a preseason physical examination and compliance with rules of conduct, dress, and training—thus lessening their legitimate expectation of privacy even further.[237]

Similar to the student-athletes in Vernonia , the plaintiffs inSkinner —employees in a heavily regulated industry—also chose to subject themselves to activities in which they would have a greater reason to expect “intrusions on their normal rights and privileges.”[238] As they were employees within the railroad industry, the plaintiffs in Skinner were routinely subject to physical examinations in order to ensure that they were capable of being entrusted with the safety of those on board the trains they were operating. With this greater level of scrutiny of their physical health, the Court held, comes a diminished expectation of privacy relative to that of a normal citizen.[239]

Several Circuit Courts have also weighed in on this matter. In Wilcher v. City of Wilmington , the Court of Appeals for the Third Circuit found that firefighters had a diminished expectation of privacy in part[240] because of their employment in a heavily regulated industry affecting the health and safety of to the public and their co-workers.[241] According to the court, “It is also the safety concerns associated with a particular type of employment—especially those concerns that are well-known to prospective employees—which diminish an employee’s expectation of privacy.”[242] Much like the customs officials in Von Raab ,[243] and the railway personnel in Skinner ,[244] firefighters with drug problems pose a “great threat to public safety,” endangering both “his colleagues and...the community at large.”[245]

Similarly, the court in Dimeo v. Griffin found the privacy interests of horse racing jockeys to be minimal when compared to Illinois’s interests in ensuring the legitimacy of horse betting—from which it derived a substantial financial benefit—and the safety of those participating in the sport.[246] According to the court, “the less habituated a person is to undergoing medical or other intrusions into his private realm, the more sensitive he is apt to be to such intrusions; the more habituated he is to them, the less sensitive he is apt to be.”[247] The “affront to the cluster of emotions,” the court stated, “that define the sense of privacy that is caused by giving of a urine sample is not the same for everybody,” and tends to be correlated to the frequency with which the individual is subject to medical examination.[248] Because the plaintiffs are athletes, the court went on, and could therefore reasonably be subjected to physical examinations before each and every race in which they voluntarily participated, their privacy interests are thus “very limited.”[249]

The Seventh Circuit, in Schaill v. Tippecanoe County School Corporation , addressed this issue in a similar fashion. Much like the Supreme Court in Vernonia , the court in Schaill found the privacy expectations of the student-athlete to be diminished because of the “element of ‘communal undress’ inherent in athletic participation, the frequency with which such athletes are subject to medical examination, and the myriad restrictions imposed upon them by school officials, such as minimum grade requirements, etc.[250]

ii. The Second Factor: The Character of the Intrusion

After determining the legitimacy of the individual’s claimed expectation of privacy, Supreme Court precedent next calls for the examination of the character of the intrusion on that privacy interest.[251] The Supreme Court in Vernonia distinguished between two types of intrusion on privacy in the urinalysis context: (i) the intrusion during the production of the sample; and (ii) the information the urinalysis discloses concerning the “state of the subject’s body.”[252]

As to the first kind of intrusion, the Court stated the degree of the intrusion “depends upon the manner in which the production of the urine sample is monitored.”[253] Under the regulations at issue in Vernonia , male students were only required to produce samples fully clothed with their backs to a monitor observing at a distance behind.[254] Moreover, female students had even greater privacy through use of a private stall.[255] The Court found these impositions to be “nearly identical to those typically encountered in public restrooms, which men, women, and especially school children use daily,” and therefore held that the privacy interests thereby compromised were negligible. [256]

Circuit courts have resolved this matter similarly. The Seventh Circuit in Schaill that the privacy considerations at issue were “somewhat mitigated” due to the fact that “the provider of the urine sample enters a closed lavatory stall and the person monitoring the urination stands outside listening for the sounds appropriate to what is taking place.”[257] Therefore, the court continued, “the invasion of privacy is...not nearly as severe as would be the case if the monitor were required to observe the subject in the act of urination.”[258]

In Wilcher , the issue before the Third Circuit was whether direct observation of the production of urination was intrusive on the appellant firefighters’ privacy interests.[259] There the district court had concluded that “the presence of monitors in the bathrooms [here] is similar to the presence of the monitors in Vernonia , and even though the monitors may have stood closer than those in Vernonia , this close proximity was a result of the collection facilities, and not a more intrusive method.”[260] The appeals court agreed with the district court’s assessment as to the male firefighters, further stating, that “in a world where men frequently urinate at exposed urinals in public restrooms, it is difficult to characterize [these procedures] as a significant intrusion on the male firefighters’ privacy.”[261]

As for the female firefighters, the court concluded that it should be “more cautious” regarding the reasonableness of the direct observation, but that nothing in Vernonia suggested that female monitors could not be in the bathroom at the time of the urine production.[262] Due to evidence that the female monitors stood to the side of the firefighters and did not look at their genitalia directly, and that, when requested, a nurse-practitioner could be provided as a monitor, the court found the intrusion, though significant, was carried out in “an appropriate and professional manner.”[263]

Similarly, in Dimeo , where the randomized drug testing of jockeys was at issue, the Seventh Circuit held that the nature of the intrusion was not significant.[264] There the individual was permitted to produce his urine sample in the privacy of a toilet stall, with a monitor standing by “but not actually watching the individual urinate.”[265]

As to the second type of intrusion—the “information” the urinalysis discloses—the Supreme Court in Vernonia found that the drug testing policy did not intrude on the students’ privacy interests in any significant way.[266] The Court found three circumstances of the search to be relevant in this regard. First, the test only looked for drugs, and not for certain other private facts about the individual, such as whether he is “epileptic, pregnant, or diabetic.”[267] Second, “the drugs for which the samples are screened are standard, and do not vary according to the identity of the student.”[268] Finally, “the results of the tests are disclosed only to a limited class of school personnel...and they are not turned over to law enforcement authorities or used for any internal disciplinary function.”[269]

iii. The Third Factor: The Government’s Interest

As a final step, the Supreme Court has directed that the inquiry should turn to the “nature and immediacy of the governmental concern at issue...and the efficacy of the means for meeting it.”[270] An early example of the Supreme Court’s treatment of this factor is provided in Skinner , where drug testing of railroad employees was at issue.[271] There, the Court found that the “Government interest in testing without a showing of individualized suspicion is compelling,”[272] because “employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.”[273] Moreover, according to the Court, the regulations at issue provided an efficient means of deterrence and therefore of ensuring public safety, and that “a requirement of particularized suspicion...would seriously impede an employer’s ability to obtain [the relevant] information.”[274] Therefore, the Court held that the drug testing policy provided by the regulations were not an “undue infringement on the justifiable expectations of privacy of covered employees,” and thus the “Government’s compelling interests outweigh privacy concerns.”[275]

Similarly, in Von Raab, where drug testing of customs officials was at issue, the Court found that “[d]etecting drug impairment on the part of employees can be a difficult task, especially where...it is not feasible to subject employees...to the kind of day-to-day scrutiny that is the norm in more traditional office environments.”[276] In rejecting the petitioner’s contentions that (i) the drug testing program was “unjustified because it [was] not based on a belief that testing will reveal any drug use by covered employees;”[277] and (ii) that the testing program is “ineffective because employees may attempt to deceive the test by a brief abstention before the test date, or by adulterating their urine specimens,”[278] the Court held that the Government had shown “its compelling interests in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or that require the incumbent to carry a firearm.”[279]

Although characterizing the government interest motivating the searches at issue in both Skinner and Von Rabb as “compelling,” [280] the Court in Vernonia stated that “it is a mistake...to think that the phrase ‘compelling state interest,’ in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here?”[281] Rather, the phrase is meant to describe “an interest that appears important enough ” to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy.”[282]

Like Skinner and Von Raab , the Court in Vernonia found the nature of the government’s interest there—preventing drug use among children—to be sufficient to justify the reasonableness of the search.[283] “The importance of deterring drug use by all this Nation’s schoolchildren cannot be doubted.”[284] “School years,” the Court continued, “are the time when the physical, psychological, and addictive effects of drugs are most severe. ‘Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound’; ‘children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.’”[285] Furthermore, the Court found that the “effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.”[286]

The Court also noted that the program at issue was directed solely at drug use by school athletes, where the “risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.”[287] The drugs screened by the school district’s program—amphetamines, cocaine, and marijuana—were shown to the Court to “pose substantial physical risks to athletes,” as well has having grave psychological effects, such as “impairment of judgment, slow reaction time, and a lessening of the perception of pain.”[288]

As for the immediacy of the state’s concern there, the Court did not find clearly erroneous the District Court’s conclusion that a large portion of the student body, most notably those involved in interscholastic competition, was “in a state of rebellion,” and that “disciplinary actions had reached ‘epidemic proportions,’” and that the cause of the “rebellion” was drug and alcohol abuse and the “student’s misperceptions about the drug culture.”[289] As to the efficacy of the means the school district chose to address its growing concern, the Court concluded that the drug problem “largely fueled by the ‘roll model’ effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs.”[290] Rejecting any contention that the “least intrusive” search practicable can be reasonable under the Fourth Amendment, the Court concluded that whatever “relative high degree of government concern is necessary,” it had been met.[291]

This holding, however, does not extend as far as the government would hope in the present context. Limiting this holding’s general applicability beyond that of the school context was the Court’s statement that the necessity for the State to act there was “magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility and care.”[292] Thus, Supreme Court doctrine governing the constitutionality of randomized urinalysis provided in Skinner , Von Raab , and Vernonia indicates that two interests may be sufficiently important to outweigh relevant privacy concerns: (i) public health and safety as affected by employees in heavily regulated industries, and (ii) the health of school children in the custody of the state.

c. Application to Federal Drug Testing Legislation

Insofar as the Court has held that drug testing in the form of urinalysis is considered a “search” under the Fourth Amendment,[293] in order to determine whether a federal drug testing policy concerning professional athletes, such as the Clean Sports Act of 2005, would violate that amendment, the first step is to determine whether the urinalysis required by such a policy could go forward without fulfilling the usual requirements of a warrant and probable cause.[294] Here, we are outside of the criminal context, and because, like in Vernonia , a warrant requirement would “unduly interfere” with the administration of the drug testing policy, the “special needs” requirement would certainly be met, and therefore the constitutionality of the law under the Fourth Amendment would be based not on whether the law would require a warrant or probable cause before the drug test could be conducted, but rather whether the law would pass the balancing test elucidated in Vernonia .[295]

As stated earlier, when the Court has conducted this inquiry in the past, it—and the various Circuit Courts applying it—has attempted to balance three factors: the nature of the privacy interest at issue, the intrusion of the law on that interest, and whether the law promotes a legitimate government interest.[296] There is perhaps little controversy regarding the first element of the balancing test, as the privacy interests involved in urinalysis remain constant regardless of the precise context of the drug testing policy, and the Court and the Circuits have held time and time again that the privacy interests involved in providing a urine sample, though legitimate, are minimal.

As the Court stated in Vernonia , “sports are not for the bashful,” but rather “require ‘suiting up’ before each practice or event, and showering and changing afterwards” within public locker rooms “not notable for the privacy they afford.”[297] Much like the athletes in Vernonia and Dimeo v. Griffin ,[298] professional athletes, such as major league baseball players, should reasonably expect to be subjected to physical examinations during the course of their voluntary participation in athletic competition, and therefore it would be of no great surprise for a court to hold that the privacy interests of professional athletes required to provide urine samples are diminished relative to the public at large.

The second factor to be balanced against the others is the level of intrusion upon the privacy interest at hand. Upon examination of the relevant case law, it becomes apparent that there are various requirements the drug testing policy must follow in order to ensure that the government’s interest in maintaining that policy are not outweighed by privacy concerns.[299]

First, the individual giving the urine sample should be afforded the privacy of a bathroom.[300] Though the athletes[301] need not be provided with the even greater level of privacy gained through the use of a private bathroom stall, the policy should allow for those tested to be fully clothed with their backs to a monitor observing from some distance behind.[302] Because these impositions are “nearly identical to those typically encountered in public restrooms,” used on a daily basis by men, women, and children, the extent of the intrusion imposed by the provision of a sample of urine does not rise to a level of great concern.[303]

To be sure, though the privacy interests and level of intrusion on those interests caused by drug testing policies are nearly identical here and in the leading case law, the real difficulty involves balancing these two elements against the governmental interest at hand. Unfortunately, the Court has never articulated precisely what level of governmental interest would be required to sustain drug testing policies they have evaluated.

The interests that have been enough in the past have been (i) to ensure public health and safety as affected by employees in heavily regulated industries,[304] and (ii) to protect the health of school children.[305] These cases, and the Circuit court cases that followed, however, did not deal with the testing of steroids, but rather with more recreational drugs, such as amphetamines, cocaine, alcohol, and marijuana. Moreover, the federal interest involved in a federally mandated drug testing policy, such as the Clean Sports Act of 2005, appears to be very different of that seen in Skinner ,[306] where the ultimate concern was that the public would be placed at risk by employees in the railroad industry being drunk or otherwise intoxicated, as well as Vernonia, [307] where the overriding interest was the prevention of recreational drug abuse by school children. This is not to say, however, that a court could not find that the government’s interest in preventing steroid use among professional athletes would not outweigh the privacy concerns inherent in randomized urinalysis of athletes. Rather, though unlikely given the constraints of current Supreme Court doctrine, if argued in the correct manner, a steroid testing policy may survive constitutional inquiry.

Of course, any court would be hard pressed to find convincing any argument linking the government’s interest in preventing steroid use among professional athletes to its interest in preventing harm to the public caused by intoxicated police officers, transportation personnel, government agents, etc., as was the case in Skinner and Von Raab . Similarly, though not a Supreme Court decision, one may wish to analogize to the holding in Dimeo v. Griffin , where horse-racing jockeys were the subject of regulation. However, unlike the New Jersey horse-racing industry, national sports leagues like Major League Baseball have never been the subject of heavy governmental regulation, a significant fact contributing to the holding there.[308] Thus, the Congress’s only alternative is through an analogy to the interests at issue in Vernonia : the health and safety of adolescents.

In Vernonia , the Court held that “deterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs...or deterring drug use by engineers and trainmen,” which were the governmental concerns sufficient to outweigh the plaintiffs’ privacy interests in Von Raab and Skinner respectively.[309] “School years,” the Court went on, “are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.”[310] In Vernonia , the Court was able to rationalize the school district’s decision to test only those students participating in interscholastic athletics—while leaving untested the rest of the student body—by appealing to a “roll model effect” argument. “It seems to us self-evident,” the Court stated, that a drug problem largely fueled by the ‘role model’ effect of athletes’ drug use...is effectively addressed by making sure that athletes do not use drugs.”[311]

As no one would argue against the fact that professional athletes function as roll models for many young adults and adolescents, Vernonia ’s “roll model effect” argument would seem to provide Congress with some room to legitimize its own drug testing policy of professional athletes. However, the Court was careful to limit this holding to the facts of the case before it, stating that it would “caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts,” and that the “most significant element” in the case was “that the [p]olicy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care .”[312]

Thus, insofar as the fact that the plaintiffs in Vernonia were children in the custody of the state in loco parentis was the “most significant element” in that holding, it would appear that under prevailing Supreme Court doctrine there is simply no realistic means of rationalizing a federally mandated drug testing policy governing adults who are not working in an industry affecting public health and safety directly. This is not to say that the Court is bound to its standing precedent, but merely that much would need to be changed in the prevailing doctrine for a law like the Clean Sports Act of 2005 to withstand Fourth Amendment scrutiny. Yet at this point the bills that have been proposed over the last year have been stagnant in Congress, perhaps owing to the fact that Major League Baseball has already undertaken to correct its perceived steroid problem. And if the MLB and other professional leagues are able to continue in their efforts to quell public criticism of their past complacency with steroids, there may never actually be a need for Congress to involve itself in this dangerous issue.

IV. Conclusion

The so-called steroid epidemic in America has been the subject of much debate in the last half-century. Despite evidence tending to show significant health risks associated with steroid use, there remains considerable speculation as to its ultimate effects. Against this backdrop lies considerable controversy regarding their place in athletic competition. And whether Congress should step in and provide uniform rules governing the testing of professional athletes is a question that still remains. As a result of this political controversy, as well as the Congressional hearings held in early 2005, professional sports leagues, most notably Major League Baseball, have sought to implement their own testing procedures. Yet, there may still be reason to believe that legislation governing the issue may turn up in the future. Whether these laws would follow the proscriptions of the Fourth Amendment, however, is a different story, and one that, under current precedent, is very likely to come out against Congress.

[1] Grace Tanya Wang, Testosterone and Anabolic Steroid Use in Sports and Society, 1 (1993) (unpublished B.A. thesis, Harvard University) (on file with the Harvard University Library).

[2] Id .

[3] Id .

[4] Id . at 13.

[5] Wang, supra note 1, 13 (citing Tim Noakes, Editorial: Anabolic Steroids , South African Medical Journal, 82(3), 145; Terry Todd, Anabolic Steroids and Sport , Sports And Exercise Science: Essays in the History of Sports Medicine, 323).


[7] Id . (quoting M.I. FINLEY AND H.W. PLEKET, THE OLYMPIC GAMES: THE FIRST THOUSAND YEARS 93 (The Viking Press, 1976)).

[8] Id . at 14.

[9] Wang, supra note 1, 14 (citing Terry Todd, Anabolic Steroids and Sport , Sports And Exercise Science: Essays in the History of Sports Medicine, 323).

[10] Id . at 14 (citing Peter Stoler, The Toughest Test for Athletes , Time Magazine, June 24, 1984).

[11] This rationale loses credibility, however, for those athletes that have access to uniquely effective drugs that a large number of their competitors do not.

[12] Even if one were to accept the opposite argument that the base-line is not a lack of exercise but rather much exercise, there is still no cogent reason to draw the line of “artificiality” at the use of drugs.

[13] Wang, supra note 1, 5.

[14] Id .

[15] William N. Taylor, M.D., has provided the following information regarding anabolic steroids: “Anabolic steroids are a group of molecules that include the male sex hormone testosterone and synthetic analogs of testosterone. Simply put, anabolic comes from a Greek verb meaning to put on, or add, and thus anabolic steroids tend to influence many of the body’s mechanisms in a constructive fashion. One of the more obvious of these mechanisms deals with the increase in muscle mass of the steroid user, especially when the user combines the steroid use with a weight-training program. Anabolic steroids are made synthetically and are powerful drugs that function as steroid hormones within the body. In many ways they tend to mimic the functions of the male sex hormone, although each of the 20 or so varieties currently on the market may produce a slightly different effect on any given user. WILLIAM N. TAYLOR, M.D., MACHO MEDICINE: A HISTORY OF THE ANABOLIC STEROID EPIDEMIC 1 (McFarland & Company 1991).



[18] Id .

[19] Haupt, HA and Rovere, GC, Anabolic steroids: A review of the literature , 12 Am J Sports Med 469 (1984).

[20] Id .

[21] WADLER & HAINLINE, , supra note 17, 63.

[22] Id . at 64.

[23] Id .

[24] I d. at 63.

[25] WADLER & HAINLINE, , supra note 17, 63.

[26] Id. at 64

[27] Id .

[28] Id .

[29] WADLER & HAINLINE, , supra note 17, 65.

[30] Id .

[31] Id .

[32] Id.

[33] WADLER & HAINLINE, , supra note 17, 65 (citing Overly, WL, et al, Androgens and hepatocellular carcinoma in an athlete (letter), 100 Ann Intern Med 158 (1984)).

[34] Id . (citing Pratt, J, et al, Wilms’ tumor in an adult associated with androgen abuse , 237 JAMA 2322, (1977); Windsor, RE and Dumitru, D, Anabolic steroid use by athletes. How serious are the health hazards? , 84 Postgraduate Medicine 37 (1988)). Wilms’ tumor is a rare kidney malignancy.

[35] Id. (citing Roberts, JT and Essenhigh, DM, Adenocarcinoma of prostate in 40-year-old body-builder , 2 Lancet:742 (1984)). Results found in a study of a young male athlete who used steroids.

[36] Id. (citing Sklarek, HM, et al, AIDS in a bodybuilder using anabolic steroid . 311 N Engl J Med 1701 (1984)). Reported in an anabolic steroid user without other risk factors other than sharing of needles for steroid injections.

[37] WADLER & HAINLINE, , supra note 17, 65.

[38] Id . at 66.

[39] Id .

[40] Tom Donohoe, and Neil Johnson, FOUL PLAY 58 (Basil Blackwell 1986).

[41] Id . “[T]he detection mechanisms that monitor the levels of testosterone cannot tell the difference between natural testosterone and testosterone-like substances that are injected or swallowed. Consequently, when anabolic steroids are taken they disrupt the control mechanisms. This reduces natural testosterone output and, as a result, inhibits sperm production.” Id. at 59.

[42] Id .

[43] Id . at 60 (emphasis in original).

[44] Tom Donohoe, and Neil Johnson, FOUL PLAY 60 (Basil Blackwell 1986).

[45] Id .

[46] Id . at 60-61.

[47] Id . at 61.

[48] According to Wadler and Hainline, “athletes often take anabolic steroids for many weeks prior to an event.” Id . at 65

[49] WADLER & HAINLINE, , supra note 17, 65.

[50] Id .

[51] Tom Donohoe, and Neil Johnson, FOUL PLAY 53 (Basil Blackwell 1986)

[52] Id .

[53] Wang, supra note 1, 27.

[54] Id .

[55] A “historical approach is important for several reasons. First, no other hormone parallels the history of the development of medical endocrinology better than that of the male sex hormone. Second, it reveals how important timing is for the discovery and use of drugs. Third, it reveals some of the pitfalls in attempting to thwart scientific inertia by the promotion of false dogma. Fourth, it uncovers some of the medical antipathy associated with drugs or hormones that significantly alter sexual desire or sexual performance.” TAYLOR, supra note 15, 3.

[56] Id .

[57] Id . (citing G.J. Newerla, The history of the discovery and isolation of the male hormone , 228(2) New England J. Med. 39-47 (1943)).

[58] Id .

[59] TAYLOR, supra note 15, 4.

[60] Id . at 5 (citing A. Weil, The history of internal secretions , 32 M. Life 73-97 (1925)).

[61] Id . (citing A. THOMPSON, THE WORKS OF ARISTOTLE VOL. 4, BOOK 9 (Oxford University Press, 1910).

[62] Id . (citing A. A. Berthold, Transplantation der Hoden , Arch. F. Anat. Physiol, u. Wissensch. Med. 42-26 (1949)).

[63] TAYLOR, supra note 15, 6.

[64] Id . (citing C.E. Brown-Sequard, Du role physiologique et therapeutique d’un suc extrait de testicules d’ animaux d’apres nombres de faits observes ches l’homme , 1 Arch de Physiol 739-46 (1889); C.E. Brown-Sequard, Experience demonstrant is puissance dynamogenique ches l’homme d’un liquide extrait de testicules d’ animaux , 1 Arch de Physiol 651-58 (1889).

[65] Id . at 7.

[66] Id .

[67] TAYLOR, supra note 15, 7.

[68] Id .

[69] Id .

[70] Id . at 7-8.

[71] TAYLOR, supra note 15, 8.

[72] Id . at 8-9.

[73] Id . at 8.

[74] Id . at 9.

[75] Characterized as the lack of normal levels of testosterone production due to the absence of testicles, this was perhaps an obvious application of testosterone therapy, and it “is one use of testosterone and anabolic steroids that is still considered primary in modern medicine. TAYLOR, supra note 15, 9-10.

[76] According to Taylor, “During the late 1930s and 1940s, involutional melancholia, also referred to as the male climacteric, presented as one of the complex problems of aging. This syndrome had symptoms that could be listed under four clinical headings: neurocirculatory, psychosexual, genitor-urinary, and miscellaneous. These clinical headings in older men with the syndrome may translate into a variety of symptoms believed to be caused by a decreased testosterone level, including anxiety, decreased libido, muscular aches, fatigue, and accumulation of lower-trunk fat....[T]here are several...reports published during this period that showed the efficacy of testosterone preparations in the treatment of the male climacteric....” Id . at 10-11.

[77] Even though roughly “a dozen studies were published during the early 1940s that showed or suggested that testosterone were beneficial in the treatment of angina pectoris, hypertension, and coronary artery disease,” according to most modern medical theories, “testosterone and anabolic steroid use and abuse is believed to be a significant contributor to hypertension and heart disease.” Id . at 11.

[78] According to Taylor, “[a]nother area in which testosterone therapy was shown to be useful in the early clinical period was in enhancement of muscle mass, strength, endurance, and reflexes of normal older men. Simonson and coworkers from the Research Laboratory of Mount Sinai Hospital in Milwaukee, Wisconsin, published the most definitive article on this topic in 1944. Six older men were treated with 30 to 40mg of methyl testosterone tablets (supplied by Schering Corporation under the trade name Oreton-M) for three to six-week periods. The older men experienced an enhancement of central nervous system reflex time (measured by flicker fusion frequency), back muscle strength enhancement, and increases in dynamic and static work performance. These changes were maintained up to eight months with periodic intervals of drug use and off-drug schedules.” Id . at 13-14.

[79] These miscellaneous conditions in which testosterone therapy was shown to be useful are: treatment of premature boy and girl infants; treatment of enuresis (bed-wetting) in boys and girls; treatment of anemia; treatment of male impotence; treatment for contraception in men; treatment during dieting to sparre muscle-mass loss; treatment for nephritic syndrome; treatment to enhance suntanning; treatment of dysfunctional uterine bleeding in women; treatment of female menopause; treatment of premenstrual syndrome (PMS) in women; and treatment to enhance sexual desire, sexual pleasure, and orgasmic response in normal women. TAYLOR, supra note 15, 14.

[80] See Id . at 9-14.

[81] Id . at 17. According to Taylor, “the AMA’s council was making conclusions about testosterone therapy prior to profound study. This fact always seems to be a basic ingredient for dogma , and much dogma, because it is based on opinion and a smattering of science, is eventually proven incorrect and often damaging for further progress.” Id . at 17.

[82] TAYLOR, supra note 15, 17.

[83] Id . at 18.

[84] Id .

[85] Id . Included here are Halotestin and Ultandren, Nivelar, Adroyd, Durabolin, and stanzolol.

[86] TAYLOR, supra note 15, 19.

[87] Id .

[88] Id . at 20.

[89] Id . at 19.

[90] TAYLOR, supra note 15, 20.

[91] Id . at 22.

[92] Id .

[93] Id . at 24.

[94] TAYLOR, supra note 15, 24.

[95] Id . at 25.

[96] Id . at 25-26.

[97] Id . For example, and FDA medical official put the following statement in the Physician’s Desk Reference: “Warning: Anabolic steroids do not enhance athletic ability.”

[98] TAYLOR, supra note 15, 25-35. For example, the American College of Sports Medicine changed its official position to hold that anabolic steroid use in combination with weight training and proper diet may result in enhanced athletic performance.”

[99] 21 U.S.C. ch. 13.

[100] Id .

[101] Id .

[102] For a similar discussion, see Charles Feeney Knapp, Drug Testing and the Student Athlete: Meeting the Constitutional Challenge , 76 Iowa L. Rev. 107, 119 (1990).

[103] 5 U.S.C.A. § 7301 (1966) (“The President may prescribe regulations for the conduct of employees in the executive branch.”).

[104] Executive Order 12,564, 51 FR 32889 (1986) (“The head of each Executive agency shall establish a program to test for the use of illegal drugs by employees in sensitive positions. The extent to which such employees are tested and the criteria for such testing shall be determined by the head of each agency, based upon the nature of the agency's mission and its employees' duties, the efficient use of agency resources, and the danger to the public health and safety or national security that could result from the failure of an employee adequately to discharge his or her position.”)

[105] 53 Fed. Reg. 11,979 (1988) .

[106] Id . at 11,979-85 (“Procedures for collecting urine specimens shall allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided....Agencies shall take precautions to ensure that a urine specimen not be adulterated or diluted during the collection procedure and that information on the urine bottle and in the record book can identify the individual from whom the specimen was collected.”).

[107] PL 101-226 (HR 3614) (1989) (“For each fiscal year, amounts made available to the chief executive officer of a State by section 5121(a) may be used for nondiscriminatory random drug testing programs for students voluntarily participating in athletic activities only in schools which voluntarily choose to participate in such a program. Nothing in this subsection shall prescribe or prohibit the use of drug testing programs.”).

[108] Major League baseball Players Association Press Release, March 17, 2005, reproduced at http://mlbplayers.mlb.com/NASApp/mlb/pa/releases/releases.jsp?content=0317 (last visited on April 23, 2006).

[109] Id . (“Simply put, the Major League Baseball Players Association does not condone or support the use by players, or by anyone else, of any unlawful substance, nor do we support or condone the unlawful use of any legal substance...we are committed to dispelling any notion that the route to becoming a Major League athlete somehow includes taking illegal performance-enhancing substances like steroids...steroids are powerful drugs that no one should fool around with. This is particularly true for children and young adults, as the medical research makes clear that illegal steroid use can be especially harmful to them....To boil our position down to its essence: The players want to rid their game of illegal drug use.”).

[110] Id .

[111] Id .

[112] Id . Mr. Fehr went on to state that, “In this country it is not up to the individual to prove he is innocent, especially of a charge of which he, as an individual, is not reasonably suspected. Moreover, one should not, absent compelling safety considerations, invade the privacy of someone without a substantial reason - that is, without cause - related to that individual. While the Fourth Amendment's protection against unreasonable searches and seizures is not directly applicable to the private employment setting, we have always believed that the important principles on which it is based should not be lightly put aside.” Id .

[113] Major League baseball Players Association Press Release, March 17, 2005, reproduced at http://mlbplayers.mlb.com/NASApp/mlb/pa/releases/releases.jsp?content=0317 (last visited on April 23, 2006).

[114] Id .

[115] Id .

[116] Id .

[117] Major League baseball Players Association Press Release, March 17, 2005, reproduced at http://mlbplayers.mlb.com/NASApp/mlb/pa/releases/releases.jsp?content=0317 (last visited on April 23, 2006).

[118] Id .

[119] Id.

[120] Id.

[121] Major League baseball Players Association Press Release, March 17, 2005, reproduced at http://mlbplayers.mlb.com/NASApp/mlb/pa/releases/releases.jsp?content=0317 (last visited on April 23, 2006). According to Mr. Fehr, under the Joint Drug Agreement, once program testing began in 2004 a first time offender was to be placed on the "clinical track", that is, required to meet with our doctors and to abide by their treatment program, including further testing for that individual, but was not suspended nor his name made public unless he committed another infraction. There was good reason for this; our focus was on treatment and prevention, not discipline, as is common in drug treatment programs, particularly for first time offenders. But this was unacceptable, we were told, because it meant players could continue to use illegal steroids without fear of serious penalties until after the first positive test.” Id .

[122] Id .

[123] Hal Bodley, Baseball officials announce tougher steroids policy , USA Today, January 12, 2005, at http://www.usatoday.com/sports/baseball/2005-01-12-steroid-policy_x.htm (last visited on April 25, 2006)

[124] Id .

[125] Id.

[126] Id .

[127] Hal Bodley, Baseball officials announce tougher steroids policy , USA Today, January 12, 2005, at http://www.usatoday.com/sports/baseball/2005-01-12-steroid-policy_x.htm (last visited on April 25, 2006).

[128] Id .

[129] Id .

[130] Id .

[131] Hal Bodley, Baseball officials announce tougher steroids policy , USA Today, January 12, 2005, at http://www.usatoday.com/sports/baseball/2005-01-12-steroid-policy_x.htm (last visited on April 25, 2006).

[132] Dan Jung, Congressional Hearing on Steroids in Baseball , Washington Post, March 16, 2005, reproduced at http://www.washingtonpost.com/wp-dyn/articles/A41366-2005Mar16.html (last visited on April 24, 2006)

[133] Id .

[134] Id .

[135] Id .

[136] Jung, supra note 134.

[137] Transcript from “Meet the Press,” March 16, 2005, at http://www.washingtonpost.com/wp-dyn/articles/A40369-2005Mar16.html (last visited on April 25, 2006).

[138] Transcript of Congressional Steroid Hearings, March 17, 2005, reproduced at http://transcripts.cnn.com/TRANSCRIPTS/0503/17/se.01.html (last visited on April 28, 2006).

[139] Id .

[140] Id .

[141] Id .

[142] Congressional Steroid Hearings, supra note 139.

[143] Id .

[144] Id .

[145] Id .

[146] Congressional Steroid Hearings, supra note 139.

[147] Id .

[148] Id .

[149] Dick Patrick, Another Anti-Steroid Bill Introduced , USA Today, May 24, 2005, at http://www.usatoday.com/sports/olympics/2005-05-24-mccain-steroids_x.htm (last visited on April 22, 2006).

[150] Id . The Congressional Research Service has provided the following summary of the bill: The Clean Sports Act of 2005 “[p]rohibits a major professional league from arranging, promoting, organizing, or producing a professional game without meeting the requirements established by this Act for testing for the use of prohibited substances by professional athletes and for public disclosure of the names of athletes who test positive. Requires a suspension of an athlete for a minimum of two years for the first violation and a lifetime ban for the second violation. Allows a league to impose a lesser penalty if the athlete: (1) establishes that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used the prohibited substance; or (2) provides substantial assistance to the league in identifying violations of the league's drug testing policy by other athletes or by any personnel working with or treating athletes. Authorizes the Director of National Control Policy to modify standards for a league under exceptional circumstances or for good cause with limitations. Require the Director to include additional professional sporting leagues or colleges if such additions would prevent the use of such substances by high school, college, or professional athletes. Treats violations of this Act as unfair or deceptive acts or practices under the Federal Trade Commission Act. Requires the Government Accountability Office (GAO) to study the use of performance-enhancing substances by college athletes. Requires the Director to establish a commission on high school and college athletics.” http://www.govtrack.us/congress/bill.xpd?tab=summary&bill=s109-1114 (last visited, April 23, 2006).

[151] Id .

[152] Id .

[153] Id .

[154] For a similar discussion, see Charles Feeney Knapp, Drug Testing and the Student Athlete: Meeting the Constitutional Challenge , 76 Iowa L. Rev. 107, 121-26 (1990).

[155] The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI ]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. U.S. Const. art. III.

[156] See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41 (1937) (a justiciable controversy must be real and substantial, and not merely an advisory opinion on a hypothetical). See also Ex parte Baez, 177 U.S. 378, 390 (1900) (there must be a "subject matter" on which to adjudicate before a court may proceed).

[157] Id .

[158] Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72 (1977) (to establish a “personal stake” in the outcome of a case, a person must show a “distinct and palpable injury” and a “’fairly traceable’” causal connection between the claimed injury and the challenged conduct”); Baker v. Carr, 369 U.S. 186, 204 (1961) (to establish standing, a party must allege a “personal stake in the outcome” of a case).

[159] See e.g., Schaill, 679 F.Supp. 833, 850-51 (N.D. Ind. 1988)

[160] U.S. Const. amend. XIV.

[161] Washington v. Davis, 426 U.S. 229, 239 (1976).

[162] RUSSEL L. WEAVER, STEVEN I. FRIEDLAND, CATHERINE HANCOCK, DONALD E. LIVELY, AND WENEDY B. SCOTT, CONSTITUTIONAL LAW: CASES, MATERIALS & PROBLEMS 548 (Aspen Publishers, 2006) (“There are few legislative enactments that do not classify and thus impose relative advantages and disadvantages upon persons. An untethered equal protection guarantee may have the potential to ‘invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes.’” (quoting Davis at 248)).

[163] ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 528 (Aspen Publishers 2001).

[164] Id .

[165] See , FCC v. Beach Communications, Inc. , 509 U.S. 307, 314-15 (1993) (a classification subject to mere rational basis review comes before a court “bearing a strong presumption of validity”);

[166] See, e.g ., Loving v. Virginia, 388 U.S. 1 (1966).

[167] Charles Feeney Knapp, Drug Testing and the Student Athlete: Meeting the Constitutional Challenge , 76 Iowa L. Rev. 107, 124-25 (1990) (citing Scanlan, Playing the Drug Testing Game: College Athletes, Regulatory Institutions, and the Structures of Constitutional Argument, 62 Ind. L.J. 863, 950 (1987)

[168] Loving v. Virginia 388 U.S. 1, 11 (1966) (suspect classification leads to strict scrutiny); Gregory v. Ashcroft , 501 U.S. 452, 470 (1991) (strict scrutiny appropriate only if classification involves a suspect class or infringes on a fundamental right).

[169] Under Supreme Court doctrine, suspect classifications are limited to those based on race and national origin.


[171] See Id .

[172] See Knapp, Drug Testing and the Student Athlete , 76 Iowa L. Rev. at 126 (citing Wiley v. NCAA, 612 F.2d 473, 477 (10th Cir. 1979) , cert. denied 446 U.S. 943 (1980) (athletic participation does not constitute a fundamental right); see also Schaill v. Tippecanoe County School Dist., 679 F.Supp. 833, 853 (N.D. Ind. 1988) (“participation in [athletics] is a privilege and not a right”)).

[173] See Williamson v. Lee Optical, 348 U.S. 483 (1955) (upholding an Oklahoma statute that drastically curtailed the ability of opticians to practice their profession, holding that “it is enough that there is an evil at hand for correction, and that it might be though that the particular legislative measure was a rational way to correct it.”)

[174] An equal protection argument was actually made in Shoemaker v. Handel , 795 F.2d 1136 (3d. Cir. 1986). The court did not rest its opinion on this argument, deciding instead to base its holding on the plaintiffs Fourth Amendment claim. However, in dicta, the court indicated that rational basis review was appropriate, and that under this standard, the drug testing policy at issue (involving the randomized testing of New Jersey horse-racing jockeys) was constitutional.

[175] E.g., Vernonia School District v. Acton, 515 U.S. 646 (1995) (Public school district's student athlete drug policy did not violate student's federal or state constitutional right to be free from unreasonable searches); Schaill v. Tippecanoe County School Corporation, 864 F.2d 1309 (7th Cir. 1988) (School's requirement that interscholastic athletes consent to random urinalysis testing to be eligible to compete in interscholastic sports reasonable under Fourth Amendment standards).

[176] E.g., Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (regulations promulgated by Federal Railroad Administration governing drug and alcohol testing of railroad employees reasonable under the Fourth Amendment); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (suspicionless drug testing of employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was reasonable under Fourth Amendment); Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998) (Delaware drug testing policy requiring firefighters to give urine specimens under direct supervision of monitor reasonable under Fourth Amendment standards).; Dimeo v. Griffin, 943 F.2d 649 (7th Cir. 1991) (Illinois Racing Board rule requiring jockeys, drivers and other participants in horse races to submit to random drug testing not founded on any suspicion of wrongdoing not violative of the Fourth Amendment); Shoemaker v. Handel, 795 F.2d 1396 (3d Cir. 1986) (regulations permitting State Racing Steward to direct any official, jockey, trainer or groom to submit to breathalyzer and urine testing to detect alcohol or drug consumption reasonable under the Fourth Amendment).

[177] The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

[178] 489 U.S. 602.

[179] Id. at 606.

[180] Id. at 607.

[181] Id . at 608

[182] Id .

[183] 489 U.S. 656 (1989).

[184] Id . at 661.

[185] Id .

[186] Id.

[187] 489 U.S. at 661.

[188] Id .

[189] Id at 662.

[190] Id .

[191] 489 U.S. at 663.

[192] 515 U.S. 646 (1995).

[193] Id . at 650.

[194] Id .

[195] Id .

[196] 515 U.S at 650.

[197] Id .

[198] Id .

[199] Id .

[200] 515 U.S. at 651.

[201] Id .

[202] Id .

[203] Id .

[204] 864 F.2d 1309 (7th Cir. 1988).

[205] Id . at 1310.

[206] Id .

[207] Id .

[208] 864 F.2d at 1311.

[209] Id .

[210] Id .

[211] Id .

[212] 864 F.2d at 1311.

[213] Id .

[214] Id .

[215] Id .

[216] 943 F.2d 679 (7th Cir. 1991).

[217] Id . at 681.

[218] Id .

[219] 943 F.2d at 682.

[220] Id .

[221] Id . at 617.

[222] 515 U.S at 652.

[223] 489 U.S. at 619.

[224] 515 U.S. at 653.

[225] Id . (quoting Griffin v. Wisconsin , 483 U.S. 868, 873 (1987)). For an in depth discussion of the “special needs doctrine,” see Fabio Arcila, Jr., Special Needs and Special Deference: Suspicionless Civil Searches in the Modern Regulatory State , 56 ADMLR 1223 (Fall 2004) (“Although the extent to which the special needs principle is consistent with original intent is debatable, it is clear that we have moved from a limited government with a commensurately limited civil search power, to an expansive government whose effectiveness calls for a Fourth Amendment jurisprudence that accommodates suspicionless civil searches....Our history has been marked by an increasing concern for assuring adequate protections from overreaching governmental searches. This concern is likely at its zenith today after the Supreme Court's relatively recent drug testing cases allowed suspicionless civil searches, which raise the greatest threat of governmental overreaching, to extend beyond the commercial context so that even individuals and their bodily fluids are subject to them . As a result, many proposals have been made for increasing Fourth Amendment protections against suspicionless civil searches. Often these proposals proceed from the premise that suspicionless civil searches are fundamentally incompatible with the Fourth Amendment. But history teaches that this is not so because the Fourth Amendment, and its relationship to suspicionless civil searches, is much more nuanced...”) (internal footnotes omitted).

[226] Id .

[227] See id . at 652, n. 1 (noting that the drug problem and the technology of drug testing are more recent than the time at which the Fourth Amendment was enacted).

[228] Id . at 652-53.

[229] Id . at 654.

[230] Id . (quoting New Jersey v. T.L.O , 469 U.S. 325, 338 (1985).

[231] 515 U.S. at 654 (“What expectations are legitimate...[depends], for example upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park.”).

[232] Id . at 656 (“The ‘reasonableness’ inquiry cannot disregard the schools' custodial and tutelary responsibility for children.”).

[233] Id . at 657.

[234] Id . (quoting T.L.O , 469 U.S. at 348 (Powell, J., concurring)).

[235] Id .

[236] 515 U.S. at 657.

[237] Id.

[238] Id . See also Von Raab, 489 U.S. at 672 (“We think Customs employees who are directly involved in the interdiction of illegal drugs or who are required to carry firearms in the line of duty likewise have a diminished expectation of privacy in respect to the intrusions occasioned by a urine test. Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity.”)

[239] 489 U.S. at 656.

[240] 139 F.3d 366, 374 (“Because they are in a highly regulated industry, and because they had consented to random testing in their collective bargaining agreement, the firefighters had a reduced privacy interest.” )

[241] Id .

[242] Id .

[243] 489 U.S. 661.

[244] 489 U.S. 602.

[245] 139 F.3d at 375.

[246] 943 F.2d 649.

[247] Id . at 682.

[248] Id .

[249] Id . at 685.

[250] 864 F.2d 1309, 1318.

[251] 515 U.S. at 658 (“Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of.”).

[252] 515 U.S. at 658.

[253] Id. (referencing Skinner , 489 U.S. at 626).

[254] Id .

[255] Id .

[256] 515 U.S. at 658.

[257] 864 F.2d at 1318.

[258] Id .

[259] 139 F.3d 366.

[260] Id . at 375.

[261] Id .

[262] Id . at 376.

[263] 139 F.3d at 377.

[264] 943 F.3d 679.

[265] Id . at 682.

[266] 515 U.S. at 658.

[267] Id . at 658 (citing Skinner , 489 U.S. at 617).

[268] Id .

[269] Id .

[270] 515 U.S. at 660.

[271] 489 U.S. 602.

[272] Id . at 628

[273] Id .

[274] Id . at 631.

[275] 489 U.S. at 633

[276] 489 U.S. at 674.

[277] Id . at 673 (noting that Petitioners could not dispute the contention that “drug abuse is one of the most serious problems confronting our society today,” and that there “is little reason to believe that American workplaces are immune from this pervasive social problem). The Court went on to state that “The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity.... The Service's program is designed to prevent the promotion of drug users to sensitive positions as much as it is designed to detect those employees who use drugs. Where, as here, the possible harm against which the Government seeks to guard is substantial, the need to prevent its occurrence furnishes an ample justification for reasonable searches calculated to advance the Government's goal.” Id . at 674-75.

[278] Id. at 676 (stating that “addicts may be unable to abstain even for a limited period of time,” and that “the avoidance techniques suggested...are fraught with uncertainty and risks for those employees who venture to attempt them.”).

[279] Id . at 677.

[280] 489 U.S. at 628 (interest in preventing railway accidents); 489 U.S. at 670 (interest in insuring fitness of custom officials to interdict drugs and handle firearms).

[281] 515 U.S. at 660-61.

[282] Id . at 661.

[283] 515 U.S. at 661.

[284] Id . at 647.

[285] 515 U.S. at 661 (quoting Hawley, the bumpy Road to Drug-Free Schools , 7 Phi Delta Kappan 310, 314 (1990).

[286] Id . at 662.

[287] Id .

[288] 515 U.S. at 662.

[289] Id. at 663 (citing Acton v. Vernonia School District , 796 F.Supp 1354, 1357 (1992).

[290] Id .

[291] Id . at 661. More specifically, the Court went on to state, “Respondents' alternative [of requiring suspicion of drug use before each test] entails substantial difficulties--if it is indeed practicable at all. It may be impracticable, for one thing, simply because the parents who are willing to accept random drug testing for athletes are not willing to accept accusatory drug testing for all students, which transforms the process into a badge of shame. Respondents' proposal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students. It generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply demand greater process before accusatory drug testing is imposed. And not least of all, it adds to the ever-expanding diversionary duties of schoolteachers the new function of spotting and bringing to account drug abuse, a task for which they are ill prepared, and which is not readily compatible with their vocation.” Id . at 663.

[292] 515 U.S. at 662.

[293] See Skinner, 489 U.S. at 617.

[294] See Vernonia, 515 U.S. at 652.

[295] Id . at 653.

[296] Id .

[297] Id . at 675. To be sure, one should not ignore the fact that this case involved school children committed “to the temporary custody of the State as schoolmaster.” However, the basic point remains that when one expects to be subjected to various examinations, such as a drug test, either through employment or through school policies, that individual’s expectation of privacy is diminished.

[298] 943 F.2d 649.

[299] See Vernonia, 515 U.S. at 658 (The degree of the intrusion “depends upon the manner in which the production of the urine sample is monitored”).

[300] See id .

[301] Though the Court in Vernonia stated that different requirements existed for females, such impositions are of no relevance here, as the leagues that would be subjected to the legislation that is the topic of this paper only involve male participants.

[302] See id .

[303] Id .

[304] See Von Raab, 489 U.S. 602 (drug trafficking agent); Skinner, 480 U.S. 602 (railroad personnel)

[305] See Vernonia, 515 U.S. 646 (student athletes)

[306] As well as Von Raab and Wilcher .

[307] As well as Schaill .

[308] 943 F.2d 679.

[309] 515 U.S. at 661.

[310] Id . (internal quotations omitted).

[311] Id. at 663.

[312] Id . at 665.