Opinion
Review Granted Dec. 20, 1990.
Previously published at: 230 Cal.App.3d 1714, 1 Cal.App.4th 1398, 7 Cal.App.4th 1738, 13 Cal.App.4th 434. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
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COUNSEL
C. Douglas Floyd, Craig E. Stewart, and Pillsbury, Madison & Sutro, San Francisco, George H. Gangwere, John J. Kitchin, and Swanson, Midgley, Gangwere, Clarke & Kitchin, Kansas City, Mo., Richard J. Archer, Kristina Hanson, and Archer & Hanson, San Francisco, for defendant and appellant.
Robert A. Van Nest, Susan J. Harriman, and Keker & Brockett, San Francisco, Margaret C. Crosby, Alan L. Schlosser, Edward M. Chen, and American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for plaintiffs and respondents.
Debra L. Zumwalt and Office of the Vice President and General Counsel Stanford University, Stanford, for intervenor and respondent.
OPINION
PREMO, Acting Presiding Justice.
The National Collegiate Athletic Association appeals from an order permanently enjoining it from enforcing its drug testing program against Stanford University students. The Santa Clara County Superior Court found that the program violated Stanford student-athletes' right of privacy since the NCAA had not shown a compelling need for its drug testing program. We affirm.
Hereafter, "NCAA" and "Stanford."
BACKGROUND
In 1986, the NCAA responded to mounting concern about the use of drugs in college athletics by instituting a testing program for six categories of banned drugs, including steroids and street drugs. The goal of the program was to provide clean, equitable competition for student-athletes.
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The NCAA is an unincorporated association of over 1,000 colleges, universities, and conferences, including Stanford. NCAA policy is determined by the member institutions at annual conventions. Its legislation governs the conduct of intercollegiate competitions and regulates the activities of student-athletes both on and off the playing field, although it does not directly discipline them. Member institutions are obliged to "apply and enforce" NCAA legislation against student-athletes on pain of discipline including suspension from participation in intercollegiate games and expulsion. There is no viable alternative to membership in the NCAA for a university with a major intercollegiate sports program.
Under the NCAA drug testing program, no tests take place until championship competitions and postseason football bowl games, although student-athletes are required to sign consent forms at the start of each school year or they are ineligible to compete in the games which determine eligibility for the championship and postseason events.
The NCAA moved to produce additional evidence in this court to show changes in the testing program which were in effect in 1989-1990. Testing for sympathomimetic amines was eliminated, women student-athletes were not required to disclose use of birth control pills, and year-round testing of football players for steroids, diuretics, and urine manipulators was authorized. There were certain changes in the length of ineligibility of subjects who tested positive. However, the parties orally argued the issues on the test program in effect at the time of trial, and the subsequent changes do not affect our opinion.
Elaborate testing protocols were devised, modeled on those used by the United States and International Olympic Committees. The protocols provide detailed instructions for the supervision of the test subjects (hereafter, "subjects"), and the collecting, packaging, and coding of the specimens. Analysis of the samples takes place only at three accredited International Olympic Committee laboratories.
Subjects are selected based on position of finish in the competition, playing time, or simply at random. They can also be tested on suspicion of use, although no one has been selected on that basis.
Subjects are required to disrobe from the area of their armpits to their knees, exposing their genitals, and to produce a urine specimen of at least 100 milliliters while under visual observation. If a subject is unable to "fill the beaker," he or she is given fluids and required to remain under the observation of the NCAA validator until successful.
Since drugs banned by the NCAA include some substances occurring naturally in food, in legal prescription and over-the-counter medications, as
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well as in illegal drugs, subjects are asked to declare what substances, if any, they had used as much as two weeks before the test. In order to avoid disqualification for innocent use of a banned substance, disclosure of information such as the use of birth control pills, herbal tea, Visine Eye Drops, Sudafed, nose spray, and Vicks Inhaler was required.
Specimens are placed in two vials, A and B. If an A specimen shows the presence of a banned substance, the athlete's declaration is reviewed. If the substance exceeds a level which is consistent with the declared and innocent use, the first positive test results in a 90-day ineligibility. A subsequent positive test after restoration of eligibility results in postseason ineligibility in all sports for the current and succeeding academic years.
Communication of test results goes from the laboratory to the NCAA to the athlete's school. The NCAA reviews the laboratory report in light of the athlete's disclosure, and determines whether a suspect result is a "positive-ineligible" for NCAA purposes. If so, the NCAA notifies the school, but it falls to the institution to present additional exculpatory information, request a test of specimen B, or appeal to the NCAA committee responsible for drug testing. The NCAA and the student have no post-testing contact. Counseling or rehabilitation programs are not required by the NCAA.
The NCAA asks for tests of B specimens on all positives.
THE CASE
This case involves the complaint by two Stanford athletes that the drug testing program violated their right of privacy. Unlike challenges in other cases and contexts, as will be discussed infra, plaintiffs Jennifer Hill and J. Barry McKeever grounded their claims on the right of privacy explicitly guaranteed by California Constitution, article 1, section 1.
This action was originally brought by Simone LeVant, a diver on the Stanford swim team. LeVant was granted a preliminary injunction in March 1987; however, it was dissolved by stipulation of the parties when she graduated and became ineligible for further participation in NCAA competition. The present plaintiffs were added as parties by amended complaints filed in February and July 1987. They sought declaratory and injunctive relief against the drug testing program, and also alleged violation of their rights to freedom from unlawful search and seizure and to due process under article 1, sections 7 and 13, of the California Constitution, as well as a common law claim for fair procedure violation. J. Barry McKeever also alleged causes of action for invasion of privacy and negligent interference with economic relations. However, in both the preliminary and permanent injunction proceedings, plaintiffs relied solely on the constitutional privacy claim.
Further references to article 1, section 1, are to the California Constitution, unless otherwise specified.
Hill, co-captain of the Stanford women's soccer team in her senior year, had played soccer competitively since she was eight years old. McKeever, a
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linebacker on the Stanford football team, with one remaining year of NCAA eligibility, had played football competitively since he was 14 years old, and had been competing in athletics since he was 6. Both claimed that athletic participation was an integral part of their education and had been so since grammar school. Additionally, McKeever alleged that he was attending Stanford on a full athletic scholarship, and without it could not afford to attend Stanford.
McKeever had signed the consent form for the 1986-1987 school year, and had been tested in connection with his participation in the 1987 Gator Bowl. Hill and McKeever both recognized that they would be ineligible to play in their final year of school if they did not sign. Both sought an injunction to prohibit the NCAA from enforcing the testing program against them in the 1987-1988 school year.
They alleged that the tests are "degrading, humiliating, and embarrassing," that the tests are incapable of measuring factors relevant to athletic performance, that there are, in fact, no drugs which enhance athletic performance, and that the program required no showing of individualized suspicion, probable cause, or compelling necessity.
Stanford intervened seeking declaratory and injunctive relief since, as an NCAA member institution, if it refused to enforce the consent provision, it could be sanctioned, but if it did enforce the program, either by requiring students to sign or withholding them from competition, it could be sued.
Stanford is a private university, over 600 of whose students participate in NCAA varsity sports. The NCAA sports at Stanford which are potentially subject to drug testing are men's and women's: basketball, cross-country, fencing, golf, gymnastics, soccer, swimming and diving, track and field, and volleyball; men's baseball, football, lacrosse, water polo, and wrestling; and women's field hockey.
On December 18, 1987, after a two-week hearing, the superior court issued a preliminary injunction prohibiting the NCAA from enforcing its drug testing program against Stanford or its students, except in the sports of football and men's basketball. In those sports, the court concluded that there was sufficient evidence of drug usage to permit testing. However, after trial in February and March of 1988, the court permanently enjoined the NCAA from enforcing any aspect of its drug testing program against Stanford or its students, including those involved in football and men's basketball.
The ruling was based on the California state constitutional guarantee of privacy. The court concluded that the NCAA failed to establish that it had a
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compelling interest in its drug testing program based on evidence of actual use of each of the banned drugs by a significant number of the male and female athletes in each of the 26 NCAA sports. Furthermore, it did not show that each of the categories of drugs had a performance-enhancing effect or that there was no less intrusive alternative. The court further found that its ruling would not burden interstate commerce.
CONTENTIONS ON APPEAL
On appeal, the NCAA contends first that the California constitutional guarantee of privacy does not extend to the private action of the NCAA. However, if the guarantee does, the NCAA has a compelling interest in detecting and deterring drug abuse in intercollegiate athletics and in protecting the integrity of its athletic competitions. Therefore, the right of privacy does not prohibit the NCAA from obtaining information needed to enforce a valid regulatory prohibition.
Next, the NCAA claims that its drug testing program is narrowly drawn to accomplish its compelling goals, that there are no adequate alternatives, and that the program interferes only minimally with an athlete's right to medical treatment. Furthermore, it tests under circumstances that significantly reduce any intrusion on privacy.
In addition, the NCAA contends that the trial court's decision violates the commerce clause of the United States Constitution (art. 1, § 8, cl. 3), in that "[t]his ruling extends the reach of California law far beyond the borders of this state, and improperly precludes the NCAA from establishing uniform rules to govern the interstate athletic competitions that it sponsors."
Finally, the NCAA contends that the court erred in awarding attorneys' fees to plaintiffs and Stanford under the "public interest" fee provision of Code of Civil Procedure section 1021.5.
STANDARD OF REVIEW
"In determining the validity of the injunction, we look at the evidence presented to the trial court to determine if there was substantial support for the trial court's determination that the plaintiff was entitled to the relief granted. If there is, then the trial court properly exercised its discretion. Where the evidence is conflicting, we do not reweigh it nor do we determine credibility of witnesses. In short, the scope of our review is the same as in the case of any other judgment or order. [Citations.]" (Monogram Industries, Inc. v. Sar Industries, Inc. (1976) 64 Cal.App.3d 692, 703, 134 Cal.Rptr. 714.)
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"On appeal all presumptions favor the exercise of [the trial court's power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences], and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence." (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, .)
RIGHT OF PRIVACY
1. Action by a Private Entity
Appellant contends that the California constitutional guarantee of privacy does not extend to the action of the NCAA since it is a voluntary, private association.
Courts have agreed with the NCAA's self-characterization. O'Halloran v. University of Washington (W.D.Wash.1988) 679 F.Supp. 997, 1001 (revd. on other grounds (9th Cir.) 856 F.2d 1375), found the NCAA to be a private entity. In Arlosoroff v. National Collegiate Athletic Ass'n (1984) 746 F.2d 1019, 1021, the court described the NCAA's basic character as that of "a voluntary association of public and private institutions." Moreover, the NCAA's regulatory function is not state action (id. at p. 1021-1022), even if a state university has membership in and enforces the NCAA's regulations. (National Collegiate Athletic Ass'n v. Tarkanian (1988) 488 U.S. 179, 179-180, 109 S.Ct. 454, 455, 102 L.Ed.2d 469.)
However, California Constitution article 1, section 1, was intended to reach both governmental and nongovernmental conduct. (Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1041-1043, 264 Cal.Rptr. 194.) That section "provides: 'All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.' By this provision, California accords privacy the constitutional status of an inalienable right, on a par with defending life and possessing property. [Citation.]" (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 15, 267 Cal.Rptr. 618.)
"Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone." (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839, fn. omitted.)
The NCAA itself points out that ballot arguments in favor of the amendment (which constitute its legislative history) indicate that the "principal
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mischiefs" at which the measure was directed were "(1) 'government snooping' and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records." (White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, .)
Therefore, even if the provisions of article 1, section 1 bind its action, the NCAA should still be allowed to test, since in the ballot pamphlet the proponents specifically stated that the measure "will not prevent the government from collecting any information it legitimately needs. It will only prevent misuse of this information for unauthorized purposes and preclude the collection of extraneous or frivolous information." (Ballot Pamp., Proposed Amend. to [Cal.] Constitution with arguments to voters, Gen. Election (Nov. 7, 1972), Rebuttal to the Argument Against the Prop. 11, p. 28.)
Because the NCAA believes student-athletes use drugs, it concludes that it "legitimately needs" its drug testing program. Arguing that since the California right of privacy "is not absolute" (Doyle v. State Bar (1982) 32 Cal.3d 12, 20, 184 Cal.Rptr. 720, ) and "does not purport to prohibit all incursion into individual privacy" (White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, ), the NCAA urges that plaintiffs' privacy claims should be balanced against its needs under a Fourth Amendment balancing test.
2. Compelling Interest Test
The NCAA contends that "courts applying the California privacy guarantee have recognized that any claimed invasion of privacy 'must be balanced against the need for disclosure' (Doyle, supra, 32 Cal.3d at p. 20, 184 Cal.Rptr. 720, ), and have upheld intrusive requirements for the provision of private information where they appeared to further a valid regulatory purpose." (Fn. omitted.)
It claims that the key issues under article 1, section 1, and the Fourth Amendment are the same: namely, the weight of the governmental interest and the degree of intrusion into privacy expectations. It takes exception to the trial court's assertion that the California privacy guarantee is "more extensive" than the protection provided by the Fourth Amendment.
Our Supreme Court has stated: "In the search and seizure context, the article I, section 1 'privacy' clause has never been held to establish a broader protection than that provided by the Fourth Amendment of the United States
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Constitution or article I, section 13 of the California Constitution. '[T]he search and seizure and privacy protections [are] coextensive when applied to police surveillance in the criminal context.' [Citation.]" (People v. Crowson (1983) 33 Cal.3d 623, 629, 190 Cal.Rptr. 165, .)
Outside the criminal context, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Reasonableness depends on all the circumstances surrounding the search or seizure and the nature of the search or seizure itself. Therefore, the permissibility of a particular practice is judged by balancing the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. (Skinner v. Railway Labor Executives Ass'n (1989) 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639.)
In criminal cases, the balance is struck in favor of the procedures described by the Warrant Clause of the Fourth Amendment. (Skinner, supra, 109 S.Ct. at p. 1414.) However, special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable, and justify departures from the usual warrant and probable-cause requirements. (Ibid.)
Therefore, toxicological testing of the crew of a train that was involved in an accident, without a warrant, and without a reasonable suspicion of drug use by any individual crew member, was justified by balancing the government's compelling interest in protecting public safety (Skinner, supra, 109 S.Ct. at p. 1419), against the employee's expectation of privacy.
The tests protect public safety because the testing procedures have a deterrent effect, increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty. Furthermore, they help railroads obtain invaluable information about the causes of major accidents, and to take appropriate measures to safeguard the general public. (Skinner, supra, 109 S.Ct. at p. 1420.)
The intrusion on privacy, itself, is limited, in that the regulations do not require the sample to be furnished under the direct observation of a monitor, and the sample is collected in a medical environment, by personnel unrelated to the railroad employer. The court also found that the expectations of privacy of the test subjects were diminished because of their employment in a pervasively regulated industry. (Skinner, supra, 109 S.Ct. at pp. 1417-1419.)
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In National Treasury Employees Union v. Von Raab (1989) 489 U.S. 656, 679, 109 S.Ct. 1384, 103 L.Ed.2d 685, the Supreme Court upheld suspicionless drug testing of Customs Service employees seeking promotion to positions involving interdiction of drug smuggling or carrying firearms. The court held that the validity of the tests was to be determined by balancing the "public interest in the Service's testing program against the privacy concerns implicated by the tests...." (Id. at p. 1397.)
However, in assessing the governmental interest claimed, the court found that the government had "compelling interests in safeguarding our borders and the public safety," and that these outweighed the privacy expectations of the tested employees (National Treasury Employees Union, supra, 109 S.Ct. at p. 1396), particularly since the employees, given the nature of their position, "have a diminished expectation of privacy." (Id. at p. 1394.)
The NCAA argues that many of the Skinner considerations apply to its testing scheme. It is concerned with athlete health and safety. Testing has a deterrent effect. Expectation of privacy is reduced because athletes are commonly subjected to extensive regulation regarding their physical fitness.
Appellant finds support for its position in Schaill by Kross v. Tippecanoe County School Corp. (7th Cir.1989) 864 F.2d 1309. That case, involving a Fourth Amendment privacy claim, held that a school district's drug testing program for interscholastic high school athletes and cheerleaders did not violate their privacy rights.
The court found that drug abuse was a significant problem among student-athletes and their health and safety was particularly threatened. (Schaill by Kross, supra, 864 F.2d at p. 1320.) The court concluded that the school district's strong interest in preventing this type of harm outweighed the students' privacy expectations.
It reasoned that because student-athletes are commonly subjected to extensive regulation regarding their physical fitness, grades, and eligibility to play, their expectation of privacy was diminished. Furthermore, a student who refused to submit to testing suffered no penalty except exclusion from participation in about 30 percent of the athletic activity provided by the school. In addition, because student-athletes and cheerleaders were required to sign consent forms, they were given advance notice of the exact manner in which testing would occur. (Schaill by Kross, supra, 864 F.2d at pp. 1318-1320.)
Plaintiffs in the instant case rested their claim on article 1, section 1, of the California Constitution, and not on an assertion of their right to be free from unreasonable searches and seizures under the Fourth Amendment.
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California courts deciding claims under article 1, section 1, require the state to show a compelling interest before it can invade a fundamental privacy right. "This test places a heavier burden on [the proponent] than would a Fourth Amendment privacy analysis, in which the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. [Citations.]" (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20, 267 Cal.Rptr. 618.)
Some courts have found less than a "compelling need" test to be sufficient for certain minimal intrusions into privacy. (Miller v. Murphy (1983) 143 Cal.App.3d 337, 343-344, 191 Cal.Rptr. 740 [fingerprinting not an area requiring the protection of strict scrutiny]; Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d 1034, 264 Cal.Rptr. 194 [drug screen in course of preemployment physical has reasonable basis] and see cases collected therein at p. 1047, 264 Cal.Rptr. 194).
The Luck court found "United States Supreme Court cases and their progeny are persuasive authority in Luck's case, although we recognize the different balancing test used pursuant to article I, section 1, as opposed to the Fourth Amendment analysis used in federal cases." (218 Cal.App.3d at p. 20, fn. 13, 267 Cal.Rptr. 618.)
The weight of governmental interest that must be shown is not simply that the regulation has some rational relationship to the effectuation of a proper state purpose, but that the state's interest is compelling. " 'The law must be shown "necessary, and not merely rationally related to, the accomplishment of a permissible state policy." [Citations.]' (Griswold v. Connecticut [ (1965) ] 381 U.S. 479, 497 [85 S.Ct. 1678, 1688, 14 L.Ed.2d 510].)" (City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268, 85 Cal.Rptr. 1, .)
Here, the NCAA ordered its member institution (Stanford) to require its student-athletes to submit to drug testing without reasonable suspicion of drug use (thereby waiving their constitutionally-protected right of privacy), or be excluded from all intercollegiate athletic competition.
To uphold the constitutionality of the NCAA's drug testing program, the NCAA must demonstrate that: (1) the testing program relates to the purposes of the NCAA regulations which confer the benefit (participation in intercollegiate competition); (2) the utility of imposing the program manifestly outweighs any resulting impairment of the constitutional right; and (3) there are no less offensive alternatives. (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 257-258, 172 Cal.Rptr. 866, citing Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 505-507, 55 Cal.Rptr. 401, .) "To the extent that the restraints operate beyond the sphere of the proffered justification they advance no compelling public interest...." (Bagley, supra, 65 Cal.2d at p. 502, 55 Cal.Rptr. 401, .)
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CONSTITUTIONALITY
1. The NCAA Purposes
Among the stated purposes of the NCAA is to "initiate, stimulate and improve intercollegiate athletics programs for student-athletes and to promote and develop educational leadership, physical fitness, sports participation as a recreational pursuit and athletic excellence[.]" (Manual of the National Collegiate Athletic Association (1986-87) p. 7.)
The NCAA believes its drug testing program furthers these purposes because "many athletes in fact believe that drugs enhance performance, ... athletes take drugs for this purpose, and ... the use or suspected use of drugs for this purpose creates intense pressures on other athletes to use potentially harmful drugs to avoid being placed at a competitive disadvantage."
"Drug abuse can seriously damage the health of the athlete taking the drug, as well as significantly impair the athlete's perception and coordination on the playing field.... [A]thletes using drugs may, in many sports, create a significant risk of injury to other participants as a result of their reduced perception and coordination or, in the case of steroids, increased aggressiveness."
Additionally, "[t]he threat to the integrity of NCAA sports is particularly apparent with regard to illegal street drugs. Not only is their use plainly detrimental to the athletes' health, and their ability effectively to compete, but it raises a significant threat of such destructive activities as gambling, point shaving and bribery in connection with college competition.... Preventing such activities was one of the purposes behind including illegal street drugs in the testing program."
The NCAA's concern became focussed in 1970 with the formation of a drug education committee. Three years later, it enacted legislation prohibiting use of drugs that threaten health and safety or that might give an unfair competitive advantage. However, drug testing was not considered reliable enough until after "the Venezuela episode" at the Pan American Games in Caracas in 1983. There, a number of athletes tested positive for banned drugs early in the competition, and as many as 15 United States athletes, including some who had previously competed in the NCAA, then decided not to compete and returned home, claiming to be ill. At that point, the United States Olympic Committee (USOC) developed its drug testing program, modeled after the International Olympic Committee (IOC) program.
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In 1983, at the NCAA's behest, the University of Michigan performed a nationwide study on the use of drugs by college student-athletes. At the national convention in 1984, NCAA members, including Stanford, adopted a resolution directing development of a drug testing program. Finally, at the 1986 convention, despite a recommendation against implementation of a testing program by the NCAA drug testing committee (a position in which Stanford concurred), the testing program was adopted.
If the NCAA's conclusions as to drug use and the efficacy of the program it implemented are borne out by the facts established at trial, the drug testing program would further the purpose of the legislation granting the benefit, and would satisfy the first prong of the Bagley test.
2. The Banned Drugs
At trial, the NCAA presented detailed evidence on its testing program. It bans six categories of drugs: (1) psychomotor and central nervous system stimulants; (2) sympathomimetic amines; (3) anabolic steroids; (4) for rifle sports only--beta blockers and alcohol; (5) diuretics; and (6) street drugs.
See ante, footnote 2.
Like the IOC list on which it is based, the NCAA list of banned drugs also includes "related compounds" to protect against evasion of the ban through the use of closely related drugs--including "designer drugs"--that have the same effect as the enumerated drugs.
The NCAA's list of banned prescription and over-the-counter drugs runs to 58 single-spaced typewritten pages, and still carries the caution: "THIS IS NOT CONSIDERED A COMPLETE LIST! RELATED SUBSTANCES ARE BANNED!"
In addition, the NCAA bans blood doping (the intravenous injection of whole blood, packed red blood cells or blood substitutes), as well as the use of growth hormone. Certain local anesthetics, asthma drugs, corticosteroids, and sympathomimetic amines may be used, but must be declared.
Category 1 drugs, psychomotor and central nervous system stimulants, include amphetamine, caffeine, cocaine, and strychnine. So, for example, beverages such as coffee, tea, and Coca Cola must be declared.
Category 2 drugs, sympathomimetic amines (eliminated from the testing program in the 1989-1990 academic year), are minor stimulants which are similar pharmacologically to category 1 drugs. They include ephedrine, pseudoephedrine, and phenylpropanolamine. They are found in prescription
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drugs and a wide range of over-the-counter preparations such as cold medications, diet pills, allergy tablets, cough syrups, and even hemorrhoid preparations.
The ban included Sudafed, Actifed, Allerest, Vicks cough syrup, Vicks Inhaler, Vicks Nighttime Cold Medicine, and Wyanoids Hemorrhoidal Suppositories.
Category 3 drugs are anabolic steroids, such as nandralone, stanozolol, and testosterone. The rationale for their use is that they enhance performance by increasing muscle mass, strength, and body weight, especially if consumed with a diet high in protein.
Category 4 contains substances banned for specific sports, namely rifle (which is not a sport at Stanford). These include alcohol and beta blockers. Since a rifle competitor attempts to fire between heart beats, the efficacy of these drugs lies in slowing the heart rate which purportedly decreases the anxiety level and tremulousness.
Category 5 drugs are diuretics. Their claimed use is in diluting urine for testing purposes, and lowering weight for wrestling.
Category 6 drugs include all street drugs, such as amphetamine ("speed"), cocaine, heroin, marijuana, and methamphetamine. In order to ensure against excluding a "passive inhaler" of marijuana, i.e., one who was in a place where others were smoking, an athlete is not excluded unless the concentration of a metabolite of THC (the active ingredient) exceeds 25 nanograms per milliliter.
Similarly, an athlete will be declared ineligible for caffeine only if the concentration in the urine exceeds 15 micrograms per milliliter; and for testosterone, a naturally occurring hormone, only if the ratio of the total concentration of testosterone to that of epitestosterone in the urine exceeds 6.
3. Prohibited Behavior
What is prohibited by the NCAA is for a competitor to be "found to have utilized" a banned substance "in preparation for or participation in an NCAA championship or certified postseason football contest."
However, the trial judge found that from the NCAA's interpretation of its rules, notwithstanding what the regulations say, it is not use of drugs nor even use of banned drugs in preparation for or participation in a championship event that is forbidden. Disqualification occurs only if an NCAA test yields positive results.
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For instance, students who admitted to using a cocaine spray and steroids were not declared ineligible because their urine test results were negative. Furthermore, the NCAA allows student-athletes who have tested positive in a school's own drug testing program to continue to participate, even in championships, so long as an NCAA-administered test does not produce positive results.
4. Evidence of Drug Use
Evidence presented to the court concerning college athlete drug use was of three general types: results of drug testing, surveys of drug use, and anecdotal reports.
The trial court found it undisputed that athletes do not use drugs any more than college students generally or others of their age group, and that they actually use drugs less during the athletic season than their peers. The incidence of drug use among student-athletes was low, and it was undisputed that the vast majority of student-athletes do not abuse drugs.
The court found that the most relevant evidence of this was the NCAA test results themselves. One of the NCAA's purposes in the first year of drug testing was to gather empirical evidence of drug use. The court concluded the NCAA's tests showed "remarkably little drug use by student-athletes involved in NCAA competition."
In extensive and meticulously detailed findings, the court determined, first, that no women athletes in any sport had been declared ineligible under the NCAA drug testing program.
Secondly, as to male students, in 1986-1987 NCAA drug testing, 3,511 were tested and only 34, less than 1 percent, were declared ineligible. 31 of the 34 ineligibles were football players and 25 of those tested positive for anabolic steroids; that is, 2.5 percent (25 out of 1,008). The only other ineligibles were in track and field (1 steroid out of 528) and basketball (2 cocaines out of 320).
In the 1987-1988 NCAA testing, 1,589 athletes were tested and 21 of those (1.3%) were declared ineligible. Seven sports were tested, but the only positive findings were in football. Out of 1,425 football players tested, 21 (1.4%) were declared ineligible. One student was responsible for two of the positives, probably one of the cocaine and one of the marijuana. Even assuming the 21 positives represent 21 different players, only 7 football players were ineligible for steroids (0.5%), 2 for diuretics (0.1%), 7 for marijuana (0.5%) and 5 for cocaine (0.3%).
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As to the evidence provided by surveys, the court found that those results merely supported the finding that athletes do not use drugs any more than other students, and, if anything, use drugs less during the athletic season.
The anecdotal evidence presented regarding drug use was not found worthy of much weight by the trial court. Much of it dealt with drug use by international athletes and in sports other than NCAA sports. The court found "not credible" the anecdotal testimony of Gayle Olinekova, who described herself as a "world-class athlete for 20 years" and sports training advisor. The remaining anecdotal evidence suffered from hearsay problems, was remote, was untrustworthy, and did not provide much information about the extent of drug use generally among college athletes.
By drug groupings, the NCAA has not had a single student-athlete declared ineligible for category 1 amphetamine or stimulant use.
The court found no evidence of any abuse of sympathomimetic amines (category 2) by college athletes. One student-athlete was declared ineligible in the first year of drug testing for sympathomimetic amines, although it appeared that the only reason he was declared ineligible, while other students who had higher concentrations were not, is because that athlete's school did not contest the ineligibility.
The minimal evidence of drug use was almost entirely limited to anabolic steroid (category 3) use by certain football players and some minor, scattered marijuana and cocaine use (street drugs, category 6) which was not shown to be in any way related to athletic competition. In fact, in 1987-1988, all the positives for cocaine and marijuana were from football players tested weeks or days before the bowl game.
Next, there was no persuasive evidence that diuretics were being used by college wrestlers to reduce weight. NCAA tests did not disclose any positives for diuretics in wrestling. There also was no good evidence of use of diuretics among college athletes in an attempt to dilute urine to avoid testing positive on drug tests.
The NCAA's results showed only two ineligibles for diuretics out of the 5,100 student-athletes tested up to the time of trial. Both of those were for the sport of football, and it was not proven that they were used to dilute the presence of other drugs (the tests for these students did not reveal the presence of other drugs). Merely drinking water before a urine test could dilute urine just as much as taking diuretics.
All of the evidence taken together demonstrated that there was no drug involvement in any sport except football, and that the problem related only to steroid use and involved a small minority of the football players.
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Finally, the court noted that the attitude of the NCAA about actual drug use is exemplified by Executive Director Schultz's statement that athletes are not drug addicts and have less of a problem than other segments of society, and by Doctor Hanley's statement that the NCAA did not feel that it had to have proof of use of drugs to ban them.
5. Accuracy of the Test Reports
Most of the marijuana positives came from the laboratory of Doctor Don H. Catlin at UCLA. The evidence showed that Doctor Catlin does not quantify the concentration levels of THC metabolites in the urine. The court found that because Doctor Catlin's lab refused to provide information on concentration levels, there was no rational basis on which the NCAA could have found that those students were ineligible under the NCAA rules which require a concentration level of THC metabolite in the urine of more than 25 nanograms per milliliter. The NCAA could not be certain that the marijuana positives were not from passive inhalation of marijuana smoke.
The court further found that test results from Doctor Carleton Nordschow, chairman-professor of the Department of Pathology at the University of Indiana School of Medicine, tended to overstate drug use. First, some of the testing was based on reasonable suspicion of use which tends to give higher percentages. Next, the figures reflect the number of samples, not the number of athletes, and many athletes are retested after a positive sample so one athlete can account for several positives. Additionally, each sample could be counted as more than one positive if it tested positive for more than one drug. Furthermore, Doctor Nordschow did not know how many of the positives resulted from proper use of medications or how many resulted in sanctions.
Doctor Nordschow's laboratory also tests specimens for other colleges and universities in the United States; however, he did not know whether drug use at those universities is representative of other universities. For instance, the University of Tennessee's testing for steroids was done at the Indiana laboratory, but was not included in Doctor Nordschow's figures and shows a lower percentage of positives than the composite figure for Doctor Nordschow's lab. Doctor Nordschow's test results, like most of the other non-NCAA test results, did not reflect use in preparation for or participation in athletic competition because the samples were not taken at the time of competition.
Finally, the evidence showed that anabolic steroids may be administered orally in a water-based form, or by injection of the substance in an oily base
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such as Nandrolone. Nandrolone can show up in a urine test as much as a year later. Water-based steroids clear the system in a few days. So testing for anabolic steroids had become as difficult as testing for other substances that are rapidly metabolized out of the system.
6. Accuracy of the Test Procedures
The court further found that although the gas chromatography/mass spectometry method used by the NCAA for most of its tests is generally considered to be the most reliable and most expensive method available, it is not perfect.
Starting with the urine collection and chain of custody procedures, there were numerous problems. For example, a student-athlete was declared ineligible when a cocaine metabolite was found in his urine, even though the sample number attributed to that student was not listed on the NCAA manifest by the crew chief, but was added on later by the laboratory. Furthermore, technician error is always a possibility and could cause a false positive.
There is a point at which presence of an anabolic steroid becomes judgment or guesswork and the NCAA labs do not have independent lab confirmation of the test results. A result was reported thusly: "a possible small nandrolone was not reported.... this individual could be positive in the future given differences in pharmacokinetics, state of hydration and related clinical variables." The NCAA labs do not have pure standards for the numerous steroid metabolites they look for.
The NCAA has disqualified athletes for steroid use if their testosterone to epitestosterone ratio is greater than 6:1. However, there is no valid published scientific data which establishes that persons who have not taken steroids cannot have a ratio higher than 6:1. Doctor David Greenblatt and at least one of the NCAA laboratories apparently feels more information is needed.
Although GC/MS testing is generally accurate in identifying a metabolite in urine, that does not necessarily identify which substance was ingested to make that metabolite. For example, it is undisputed that a urine test cannot distinguish between heroin and morphine, a valuable therapeutic drug. Even poppy seed can cause a positive for opiates under the NCAA drug testing program.
The current NCAA protocol provides that a decision on eligibility for a student found positive for sympathomimetic amines "will be made based on
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declaration [of use] consistent with concentration levels determined by the laboratory analysis and other data." Doctor Nordschow, who makes these determinations for the NCAA said it is just an "educated guess."
Doctors Randall Baselt and Greenblatt stated that given individual variations in metabolism, the differing amounts of water ingested and other factors, it is scientifically impossible to make such a determination. The NCAA declared one student ineligible who had over 10 micrograms per milliliter of pseudoephedrine in urine, but did not declare a student ineligible who had 200 micrograms per milliliter of the same substance.
In addition, the testing methodology for marijuana is inadequate. Under the NCAA rules, a student-athlete is ineligible only if the test shows a concentration of greater than 25 nanograms per milliliter of a THC metabolite in the urine. Most of the tests for athletes declared ineligible for marijuana were performed by Doctor Catlin's laboratory, which did not quantify the amount of THC metabolite present. Thus, students were declared ineligible with insufficient data. Students can be declared ineligible under the NCAA program for merely passively inhaling marijuana smoke in a room.
Furthermore, the three NCAA laboratories use different practices, which could result in different test results.
The NCAA claims that in making these findings, the court below erred in not granting due deference to its finding that drug use by student-athletes significantly affects its vital interests. It claims that it, as a regulatory body, is entitled to base its regulations upon substantial evidence that a problem significantly affecting its vital interests exists, even if that evidence is not free from dispute. Therefore, it argues that the burden of proof imposed by the trial court was too heavy, and that the validity of the NCAA's drug testing program should not depend on the NCAA's ability to "prove" the existence of wide-spread drug abuse in college sports. In short, the NCAA argues that the court was "not free to reject a regulatory body's conclusion, based upon substantial evidence, that a problem significantly affecting its vital interests exists simply because those subject to the regulation have presented evidence of a different viewpoint at trial."
Apparently the NCAA is claiming that the trial court, relying on the same data the NCAA relied on (its reports, its test data, and its witnesses), is required to reach the NCAA's conclusion, no matter what the court independently determined that the evidence showed.
This contention is untenable. Assuming, arguendo, the proposition that the NCAA deserves as much deference as the Congress, the state legislature,
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and administrative agencies regulating in the area of their particular expertise, the NCAA, like governmental bodies, must still show a "compelling need" to justify an invasion of privacy.
In Loder v. Municipal Court (1976) 17 Cal.3d 859, 132 Cal.Rptr. 464, , cert. den. (1977) 429 U.S. 1109, 97 S.Ct. 1143, 51 L.Ed.2d 562, the court did uphold the government's right to keep arrest records, but it did so by applying the compelling need standard and finding that the evidence did establish a substantial governmental interest. (Id. 17 Cal.3d at p. 868, 132 Cal.Rptr. 464, .)
The United States Supreme Court in Buckley v. Valeo (1976) 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, did not blindly accept Congress's regulatory decision in passing a law concerning federal campaign contributions. On the contrary, the court found that significant encroachments on constitutional rights "cannot be justified by a mere showing of some legitimate government interest" (id. at p. 64, 96 S.Ct. at p. 656, see also at pp. 55, 57, 96 S.Ct. at pp. 652, 653); but rather unconstitutionality "turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny" which is applicable (id. at p. 44, 96 S.Ct. at p. 646).
7. Utility Versus Impairment
A. Privacy Interest
The second prong of the Bagley test requires, first, a determination whether the testing program invades a protected constitutional interest, and second, whether the utility of the program manifestly outweighs any resulting impairment of the constitutional right. (65 Cal.2d 499, 55 Cal.Rptr. 401, .)
Plaintiffs complained of four serious intrusions into their privacy interests: First, monitored urine collection is embarrassing and degrading; second, the NCAA test program interferes with the individual's right to medical confidentiality; third, it interferes with medical treatment; and finally, the NCAA attempts to control their personal and private off-the-field conduct by a form of technological surveillance.
The constitutional right of privacy guarantees to the individual "the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity...." (Superintendent of Belchertown v. Saikewicz (1977), 373 Mass. 728, 370 N.E.2d 417, 427.)
Both the collection and testing of urine are included in the privacy interests that article 1, section 1, protects. (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 17, 267 Cal.Rptr. 618.) " '[T]he process of collecting
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[a urine sample], which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated: [p] "There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom." [Citation.] [p] [I]t is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable....' [Citations.]" (Id. at pp. 15-16, 267 Cal.Rptr. 618.)
Our Supreme Court upheld a trial court's refusal to order a blood or urine test of a testifying witness where the defendant claimed that the witness was testifying under the influence of narcotics. Noting that the trial court had allowed a visual examination of the witness and had then found that there was no probable cause to believe the witness had been using drugs or was intoxicated, the Supreme Court commented that such a test would invade the witness's privacy and dignitary interests protected by the due process and search and seizure clauses. (People v. Melton (1988) 44 Cal.3d 713, 739, fn. 7, 244 Cal.Rptr. 867, .)
A New York court has found that "[u]rine testing 'in the presence of a government official or agent ... is at least as intrusive as a strip search' and involves a great 'intrusion on individual privacy and dignity.' [Citation.]" (Caruso v. Ward (1988) 72 N.Y.2d 432, 534 N.Y.S.2d 142, 145, 530 N.E.2d 850, 853.)
Next, as plaintiffs correctly contend, the right to keep one's medical history private is protected by article 1, section 1. (Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 228 Cal.Rptr. 545.) "The 'chemical analysis of urine ... can reveal a host of private medical facts about an employee, including whether she is epileptic, pregnant, or diabetic....' [Citations.]" (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 15, 267 Cal.Rptr. 618.)
Furthermore, since the right to procreative choice is a fundamental right clustered within the other rights of privacy (Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 162, 219 Cal.Rptr. 387, ), the requirement that women athletes declare their use of birth control pills invades this right.
Third, the individual's right to control his own medical treatment is also protected by article 1, section 1. (Bouvia v. Superior Court (1986)
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179 Cal.App.3d 1127, 1137, 225 Cal.Rptr. 297.) There is Legislative recognition "that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care...." (Health & Saf.Code, § 7186.) "Patients make their own treatment decisions with the advice of their physicians." (Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 198, 245 Cal.Rptr. 840.) "To enable the patient to chart his course knowledgeably, reasonable familiarity with the therapeutic alternatives and their hazards becomes essential." (Cobbs v. Grant (1972) 8 Cal.3d 229, 243, 104 Cal.Rptr. 505, .) This includes the ability to choose among legal medications.
Finally, the right to privacy protects "an enormously broad and diverse field of personal action and belief." (White v. Davis, supra, 13 Cal.3d at pp. 773-774, 120 Cal.Rptr. 94, .)
"The court in White v. Davis quoted these words from 'a statement drafted by the proponents of the provision [that added "privacy" to the California Constitution] and included in the state's election brochure' (13 Cal.3d at pp. 774-775, 120 Cal.Rptr. 94, ): ' "The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.... [p] The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is a compelling public need...." ' " (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130, 164 Cal.Rptr. 539, , emphasis omitted.)
B. Compelling Need: 1. Health and Safety of Athletes
Since the NCAA program invades a protected constitutional interest, the NCAA must show that the utility of imposing the program manifestly outweighs any resulting impairment of the constitutional right.
The NCAA contends that it needs its testing program for two reasons. One goal is to protect the health and safety of student-athletes. However, the trial court found that there was no evidence that drug use in athletic competition was endangering the health and safety of student-athletes. Also, there was no evidence that any college athlete had even been injured in competition as a result of drug use.
The court found that although it was uncontroverted that all the drugs on the NCAA banned list could be harmful to health if misused, that is true for all substances. Aspirin and even water can be dangerous if misused.
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Moreover, even if student-athletes were not drug-free, it was undisputed that their drug use was no greater than that of other students and therefore there was no compelling need for drug testing of athletes based on their health.
Furthermore, there was no evidence that any student-athlete had ever injured anyone else as a result of drug use. Unlike pilots and railroad workers, athletes are not responsible for the safety of others.
Additionally, the court found that the NCAA's concern for the health and safety of athletes did not extend to requiring measles vaccines for athletes despite previous measles outbreaks at postseason competition. The NCAA's rationale for that position was that it did not feel athletes should be treated any differently from any other students. The court stated that there also did not appear to be any reason to treat student-athletes differently from other students with regard to drugs and their health.
In any event, the NCAA drug testing program did not do much to protect athletes' health and safety. Most of the substances containing banned drugs were over-the-counter medications or prescription medications which are Food and Drug Administration approved, and which are designed to improve health. Banning so many useful medications may actually be harmful to the health and safety of athletes who are likely to be afraid of taking a needed medication for fear that it will result in a positive drug test. There was evidence that physicians were deterred from prescribing needed medication to college athletes.
The court found that every witness who testified on this issue agreed that by far the most serious substance abuse problem among college athletes and college students generally is alcohol. Except in the sport of rifle, which is not a Stanford sport, the NCAA drug testing program does not ban the use of alcohol or test for it. The evidence also showed that cigarette smoking will kill more young people, including student-athletes, than any other substance, yet the NCAA does not ban smoking.
Finally, the NCAA does not provide any counseling, rehabilitation, or offer schools or universities any assistance in counseling or rehabilitation for athletes who are found to have a drug problem under the drug testing program.
The NCAA's own experts testified that counseling and rehabilitation is a necessary part of any substance abuse program, and, in fact, they would not be associated with a program that did not provide it. The NCAA's own
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survey showed that in the first year of the drug testing program, 75 percent of the schools did not have a plan for treating student-athletes shown to have drug dependency problems. In the second year, more than half (58%) of the schools did not have rehabilitation plans. Identifying someone who has a drug problem does not help the health of that person unless he receives appropriate treatment.
B. Compelling Need: 2. Fair Competition
The second stated goal of the NCAA's drug testing program is to preserve fair and equitable competition. The NCAA claimed that student-athletes would feel compelled to use drugs if they believed that drugs would enhance performance and that competitors would be using them.
However, the court found that the evidence did not establish that any of the drugs on the banned list would actually enhance the performance of an athlete in the NCAA sports. This was consistent with the finding of the NCAA's Special Drug Committee.
Doctor Robert Murphy, a member of various NCAA drug committees, also concluded that no substance had consistently been shown to increase performance in the athlete.
Doctor Daniel F. Hanley, another NCAA committee member and expert, testified that none of the drugs that were supposed to improve performance worked very well. Furthermore, any improvement in performance which might be thought attributable to amphetamines, central nervous stimulants, and steroids was no greater, nor occurred more consistently, than that caused by day-to-day physiologic variation.
The court found that, at best, the possible performance enhancement of steroids (increase in lean body mass and muscle strength) was a scientific controversy which would not be resolved in the foreseeable future. The scientific literature was conflicting on enhancement of performance, and it was clear that steroids do not enhance aerobic performance.
Doctor David J. Greenblatt, chief of clinical pharmacology at New England Medical Center Hospital and professor of psychiatry and medicine at Tufts University School of Medicine, testified that there was no scientific evidence to show that anabolic steroids would enhance performance in any athlete. For instance, no one had scientifically demonstrated that any possible improvements in strength would translate into enhanced performance for football players.
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Therefore, the court found that the NCAA failed to carry its burden of proving that anabolic steroids enhance performance in any NCAA sport.
With respect to amphetamines, Doctors Murphy and Hanley agree that amphetamines and stimulants do not improve performance of athletes beyond any placebo effect. Doctor Greenblatt testified that there was no hard evidence that any of the substances in Categories 1 and 2 (stimulants and sympathomimetic amines) improve athletic performance in any sport. The laboratory tests could not be extrapolated to athletic performance because it is more complex and does not involve the adrenaline at work in actual competition.
Stimulants can impair performance in actual competition because they result in distractibility, loss of concentration, shaky or tremulous hands, and jumpiness. Although Doctor Dugal believed that amphetamines could enhance some limited types of athletic performance, he admitted that the scientific evidence was conflicting and at least one of the studies he was relying on stated that "[t]he findings ... do not prove that athletes performing in intercollegiate meets would be helped by amphetamine."
The review of the literature relied on by Doctor Dugal omitted a study showing amphetamines do not enhance performance. If there is any enhancement effect of amphetamines in sports, Doctor Dugal testified it would be the same type of enhancement effect students would get from using amphetamines to study.
Despite the conflicting evidence on theoretical performance enhancement, Doctor Dugal admitted that he had never had an amphetamine positive in his laboratory in any NCAA sport. Therefore, it does not appear that college athletes are currently using amphetamines to enhance athletic performance.
In addition, many of the over-the-counter medications contained in Categories 1 and 2 of the NCAA banned list contain other ingredients which would impair an athlete's performance. There were no scientific studies which tended to show athletic performance enhancement with these medications.
There was no evidence that diuretics improve athletic performance, and even in wrestling where it is theoretically possible to use them to reduce weight, it probably impairs athletic performance.
The NCAA did not carry its burden of proving that beta blockers will enhance performance in rifle sports. Although beta blockers slow heart beat,
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Doctor David Lowenthal testified that studies have shown that lowered heart rate does not improve performance. In any event, rifle is not an NCAA sport at Stanford, so there is no drug testing for beta blockers of any Stanford athlete.
The court found that the NCAA did not prove that any street drugs would enhance an athlete's performance. It is clear that marijuana will impair performance. Cocaine can also impair performance because it is a very complex drug which has depressant effects and results in loss of concentration. Finally, although the NCAA bans other "street drugs," such as heroin, there is no evidence that any of these drugs enhances performance.
The NCAA bans, but does not test for, blood doping which it believes enhances performance, and growth hormones. Apparently, these practices cannot be detected with the current methodology.
The NCAA also attempted to justify its drug testing program on the ground that, even if the banned drugs do not actually enhance performance, if athletes, coaches, and the public believe they do, that is a sufficient reason to ban them. However, the evidence is that, with the possible exception of steroid use in football, drugs are not perceived by college athletes and coaches to enhance college athletic performance or to be a major problem. Even for steroid use, the "perception" is that it might only help certain types of positions in football. As to the public perception of drug use by college athletes, the NCAA drug testing program is probably doing more harm than good.
Based on the above, the court concluded that the NCAA did not establish a compelling need for drug testing of student-athletes under either claim, and that it was unfair to single them out.
Additionally, the program cannot even accomplish its stated task: To determine whether banned substances were used in preparation for or participation in NCAA postseason competition.
It is undisputed that the drug testing done by the NCAA is not designed to and cannot determine whether an athlete took a substance in preparation for or participation in an NCAA post-season competition. Neither can the drug testing performed by the NCAA determine whether the athlete's performance was affected by any of the banned substances.
The NCAA drug tests cannot tell when a student-athlete took a banned substance, how much was taken, or even whether it affected the athlete's
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performance. Unlike blood alcohol testing, testing of urine for drug metabolites does not provide any information about the effect of those drugs on the person or the circumstances of the drug's use.
An athlete may be disqualified from an event even if that athlete does not enjoy any advantage in performance. Conversely, an athlete may have received a benefit from a drug such as a short-acting steroid, but still test negative on an NCAA drug test.
In the sport in which most testing is done, football, the testing is done so far in advance of the game (days or weeks), that the test could not possibly show whether stimulants, cold medications, or street drugs were used which could possibly have an effect at the time of performance.
For example, the effects of marijuana last only a few hours, but the metabolites remain in the urine much longer. Thus, football players were declared ineligible for marijuana which was almost certainly taken socially, without any relation to postseason competition, because metabolites of the marijuana were in their bodies days or weeks before the competition. There is no way that the marijuana detected from their urine could have had any effect on their performance days or weeks after the urine test.
Steroids are a drug primarily used during training. If water-based steroids are used, they cannot be detected in urine after a few weeks. Testing for steroids at the time of postseason competition is not likely to detect or deter such steroid use during training.
There is no scientific evidence that drug testing is an effective deterrent to drug use. Even if one believes that appropriate drug testing can be a deterrent, the NCAA testing, which is preannounced and takes place only at championships, would only deter drug use among a very small number of people and only for the immediate period of the drug testing. Drug testing alone, without counseling and rehabilitation, is not an effective deterrent to drug use.
The evidence is that the NCAA's random, announced, unindicated drug testing is not a scientifically valid method of detecting or deterring drug use. The NCAA anually tests thousands of athletes it has no reason to believe perform under the influence of a banned substance.
Therefore, the NCAA's drug testing program is not effective in reaching its stated goals of clean and equitable postseason competition and protecting the health and safety of student athletes.
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8. Availability of Less Intrusive Alternatives
The third prong of the Bagley test requires a showing that the NCAA has no less intrusive means available to it to further its goals of assuring fair competition and protecting student-athlete health. The trial court found that the NCAA did not carry its burden.
The NCAA has not adequately tried drug education, which the experts believe can be an effective means of deterring drug use. It is undisputed that the NCAA's drug education effort prior to the testing program instituted in 1986 was minimal, and consisted of publication of a brochure and some posters.
During all the years from 1975-1985, the NCAA spent only $200,000 on drug education; however, the NCAA spent over $1,000,000 on drug testing in the first year of the program alone. Drug education is certainly a viable alternative to drug testing which has not been adequately attempted by the NCAA.
The NCAA has not even passed along the warnings or implemented the preventative drug education which was suggested by Doctor Catlin in his laboratory reports.
The NCAA witnesses have testified that even if drugs do not enhance performance, some athletes think they do. This is exactly the type of problem that is best addressed by an educational program rather than by punitive testing. Drug education is effective in destroying the myths concerning drugs in sports, such as the placebo effect and the effect of amphetamines.
A successful drug education program would also deter drug use at all times, unlike the NCAA drug testing program which only deters use near postseason events. Effective drug education which teaches athletes to deal with the stress and underlying causes for drug use is more appropriate for educational institutions than the NCAA's drug testing program which only teaches athletes to "say no" to drugs only when they believe they may be caught.
Witnesses testified further that the program may actually be encouraging athletes to use drugs on the banned list which they would not otherwise even consider using. An effective drug education program would deter use of all drugs and avoid such problems.
The NCAA has not proven that a good drug education and counseling program directed to all students or specifically to student-athletes cannot adequately address drug use among college athletes.
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The NCAA has not adequately considered and used testing based on reasonable suspicion as an alternative to random testing or testing based on playing time. Although the NCAA program provides for testing based on suspicion, the NCAA has not tried it.
For example, anabolic steroids, almost alone on the list, produce very specific characteristics when taken. It is undisputed that persons using anabolic steroids experience rapid weight gain, a garlicky odor, hair loss, an increase in aggressiveness, et cetera. This means that trainers and coaches (who are extremely attentive to their players) can, by closely observing their athletes, form a reasonable suspicion of steroid use.
Other organizations use reasonable suspicion testing, including the Olympics and the NBA. A drug testing program for anabolic steroids based on reasonable suspicion would accurately detect many of those using steroids and would eliminate the unnecessary testing of many innocent student-athletes. Although reasonable suspicion is not infallible, neither is the NCAA's current method.
Additionally, the trial court found that the NCAA's drug testing program is overbroad. First, it includes substances which do not enhance performance, for which there is no evidence of use in college athletics, and which are not even available.
Second, the NCAA's list of banned substances is unnecessarily inclusive because each category contains the words "and related compounds" or "others." This makes it impossible for an athlete to know what drugs are prohibited. Indeed, even the NCAA's own laboratory directors, consultants, and staff cannot agree on what drugs are contained on the list. For example, Doctors Robert Voy, Jerome Patmont, and Catlin thought that codeine was on the banned list under street drugs; Doctor Nordschow was not sure; and Doctor Hanley and NCAA assistant director Ruth Berkey stated that it was not.
Finally, the NCAA's appeal process is inadequate. NCAA regulations provide an abbreviated hearing process for athletes declared ineligible. The institution is notified of a positive result and the institution is supposed to notify the student, and notify the NCAA whether it requests a hearing within 12 hours of the initial notification. The hearing (called an "appeal"), is a telephone conference call that must be held on the same day that the specimen B results are known. The student is not entitled to a test of specimen B by an independent laboratory. The right to a hearing is the institution's, not the student's.
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The NCAA does not advise the student-athlete if there was a problem in the chain of custody of the sample, or provide the laboratory results. Such a hearing process does not give a student adequate time or availability of information to properly prepare a defense.
In summary, substantial evidence supports the trial court's findings. From the evidence it is clear that the Bagley test has not been satisfied. First, the evidence did not support the NCAA's claim that there is significant drug use among student-athletes, and that by testing, students' health and safety and the integrity of the competition will be protected. The evidence showed that the test program was too broad, and its accuracy doubtful. The appeal procedure was inadequate. Finally, there are alternatives to testing that are less offensive to the right of privacy which have not been adequately considered. Therefore, what usefulness the program had did not manifestly outweigh the resulting impairment of the constitutional right of privacy. For these reasons, the NCAA may not require student-athletes to "waive" their constitutional rights in order to receive the benefit of participation in intercollegiate athletics.
INTERSTATE COMMERCE
Next, the NCAA contends that whether or not the program offends article 1, section 1, the trial court's decision violates the commerce clause (art. 1, § 8, cl. 3) of the United States Constitution. The NCAA claims that by prohibiting it from requiring Stanford athletes to submit to drug testing, the court extended the reach of California law far beyond the borders of the state, and improperly precludes the NCAA from establishing uniform rules to govern the interstate athletic competitions that it sponsors.
The NCAA asserts that it "cannot be expected to maintain a nationwide system of interstate competition in which only some athletes are subject to drug testing and possible disqualification while others are not, any more than it could allow only some schools to pay their athletes or exempt them from attending classes."
The United States Supreme Court has explained that the " 'Commerce Clause ... precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State,' [citations].... [A] statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State's authority and is invalid regardless of whether the statute's extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the
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regulation is to control conduct beyond the borders of the State. [Citation.]" (Healy v. Beer Institute, Inc. (1989) 491 U.S. 324, ----, 109 S.Ct. 2491, 2499, 105 L.Ed.2d 275.)
The NCAA's activities constitute "commerce." "What the NCAA and its member institutions market ... is competition itself--contests between competing institutions. Of course, this would be completely ineffective if there were no rules on which the competitors agreed to create and define the competition to be marketed.... In order to preserve the character and quality of the 'product,' athletes must not be paid, must be required to attend class, and the like. And the integrity of the 'product' cannot be preserved except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed." (NCAA v. Board of Regents of Univ. of Okla. (1984) 468 U.S. 85, 101-102, 104 S.Ct. 2948, 2960-2961, 82 L.Ed.2d 70.)
The trial court found, however, that enjoining NCAA drug testing of Stanford student-athletes would not cause an undue burden on interstate commerce. The trial court specifically found that the NCAA has held championships for 80 years without drug testing, and that the NCAA does not test at all of its championships. At the championships where it does test, it does not test all teams or all players. Furthermore, the court found that an injunction prohibiting testing of Stanford athletes and prohibiting retaliation against Stanford does not affect commerce since the commercial arrangements for the competitions and games "survive undisturbed."
States may enforce their laws, such as the constitutional right to privacy, which indirectly or incidentally regulate interstate commerce. (City of Oakland v. Oakland Raiders (1985) 174 Cal.App.3d 414, 419, 220 Cal.Rptr. 153.) In determining whether a state regulation is a prohibited interference with interstate commerce, the court must weigh the nature and urgency of the state interest and the efficacy of the means adopted for achieving that end, on the one hand, against the degree of interference with interstate business on the other. (Upholstered Furniture v. Cal. Bur. of Home Furnish. (E.D.Cal.1977) 442 F.Supp. 565, 569.)
In this case, the local benefit, enjoining the invasion of a fundamental and inalienable constitutional right--the right to privacy--is of paramount importance. Prevention of the free exercise of constitutionally protected rights "must always be considered a serious harm." (U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1172, 201 Cal.Rptr. 837.)
The recitation of the trial court's findings shows that the NCAA has not carried its burden of showing that the injunction interfered with interstate commerce.
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Finally, the trial court found that "[i]t is undisputed that the NCAA is a resident of California. As such, the Court can enter an injunction which applies to the NCAA both inside and outside of California and prohibit drug testing of Stanford athletes wherever the tests take place...."
" ' "[A] court of equity having jurisdiction of the person of defendant may render any appropriate decree acting directly on the person, even though the subject matter affected is outside the jurisdiction, a court having jurisdiction of the parties may grant and enforce an injunction, although the subject matter affected is beyond its territorial jurisdiction, or requires defendant to do or refrain from doing anything beyond its territorial jurisdiction which it could require him to do or refrain from doing within the jurisdiction." [Citation.]' [Citation.]" (Pines v. Tomson (1984) 160 Cal.App.3d 370, 399-400, 206 Cal.Rptr. 866.)
ATTORNEYS' FEES
The NCAA's final contention is that the order awarding attorneys' fees under the "public interest" fee provision of Code of Civil Procedure section 1021.5 must be reversed. Since we have upheld the trial court's action in granting the injunction, its contention that plaintiffs and Stanford are not "prevailing parties" need not be considered.
However, the NCAA also argues that Stanford's participation in this lawsuit was not necessary to enforce "an important right affecting the public interest." (Code Civ.Proc., § 1021.5.) According to the NCAA, Stanford, as an intervenor seeking to protect its own interests, stands on an entirely different footing from plaintiffs, and has the burden to show that "its litigation costs transcend its personal interest." (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 113, 212 Cal.Rptr. 485.)
The NCAA asserts that Stanford did not carry that burden because its complaint in intervention did not allege a violation of the right of privacy, was completely neutral on the legality of drug testing, and merely sought to protect itself from potential lawsuits by students and from sanctions and penalties by the NCAA should the latter prevail.
"Thus," the NCAA contends, "Stanford's individual 'stake in the outcome of its litigation was substantial' and Stanford was 'motivated by [its] own pecuniary interests' [citation]," and "[a]ny public benefit from Stanford's participation in the lawsuit was 'wholly coincidental' to Stanford's private economic goals[.]"
"[A] court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the
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enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any...." (Code. Civ.Proc., § 1021.5.) Subdivision (c) does not apply because there was no pecuniary recovery.
"It is the trial court's initial responsibility to determine the appropriateness of the fee. [Citation.] Whether [Stanford has] met [its] requirement for an award of fees and the reasonable amount of the award are questions best decided by the trial court. [Citations.] The standard of review after the trial court has ruled is abuse of discretion. [Citation.] To determine abuse we must review the entire record on the issue, paying particular attention to the court's stated reasons in denying or awarding fees and whether it applied the proper standards of law in reaching its decision." (Bartling v. Glendale Adventist Medical Center (1986) 184 Cal.App.3d 97, 103, 228 Cal.Rptr. 847.)
In the instant case, the court's ruling is contained in a minute order reading: "Plaintiff's [sic ] motion for a determination that attorneys' fees are appropriate is granted. [p] Intervenor Stanford's motion for attorneys' fees is granted. [p] Upon motion, a determination of the amount of those fees will be made when judgment is final."
Vindicating the right to privacy justifies an award of attorney fees. (See Bartling v. Glendale Adventist Medical Center, supra, 184 Cal.App.3d at p. 101, 228 Cal.Rptr. 847; Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 156 Cal.Rptr. 584.) "The private attorney general doctrine applies to both constitutional and statutory rights. [Citation.] Because no concrete standard exists to test whether an important right has been enforced, it is for the courts to assess the significance of the right. [Citations.]" (Beach Colony II v. California Coastal Com., supra, 166 Cal.App.3d at p. 111, 212 Cal.Rptr. 485.) The determination that the public policy vindicated is one of constitutional stature establishes the first of the elements requisite to the award. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318, 193 Cal.Rptr. 900, .)
The second requirement under the private attorney general doctrine is that a significant benefit has been conferred on the general public or a large class of persons. Constitutional rights, such as the right of privacy, are by nature individual rights, but "their enforcement benefits society as a whole." (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 319, 193 Cal.Rptr. 900, .)
Without Stanford as a party, this action would have been applicable to only two students in two sports instead of over 600 students a year in 25
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sports at Stanford. Without Stanford's participation in this lawsuit, the NCAA would have evaded the constitutional restrictions on drug testing of all Stanford students except the two plaintiffs. In fact, after the first preliminary injunction involving Simone LeVant, the NCAA refused to apply the reasoning of the injunction to any other athlete at Stanford and insisted that Stanford comply completely with its unconstitutional drug testing program. (See Slayton v. Pomona Unified School Dist. (1984) 161 Cal.App.3d 538, 551-552, 207 Cal.Rptr. 705.) Stanford's presence in this lawsuit was necessary to ensure fair and equitable treatment of all Stanford student-athletes.
Besides the Stanford students who were directly affected, widespread publicity about this case educated "countless others ... about a contemporary issue of public importance" (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321, 193 Cal.Rptr. 900, ), and has put other California student-athletes on notice that the NCAA's drug testing program is unconstitutional in California. (See Slayton, supra, 161 Cal.App.3d at p. 552, 207 Cal.Rptr. 705.) This affects the thousands of other California student-athletes who have been required to consent to NCAA drug testing.
Next, an award on the private attorney general theory is appropriate " 'when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the [claimant] "out of proportion to his individual stake in the matter." [Citation.]' " (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941, 154 Cal.Rptr. 503, .)
"Since [Stanford] had no pecuniary interest in the outcome of the litigation, 'the financial burden in this case [was] such that an attorney fee award [was] appropriate in order to assure the effectuation of an important public policy.' [Citation.]" (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321, 193 Cal.Rptr. 900, .)
The fact that plaintiffs are also parties does not prevent the award of attorneys' fees to Stanford. The plaintiff in Press was allowed attorneys' fees for enforcing a right which had already been established in other litigation. Attorneys' fees are also routinely awarded to separate counsel for multiple parties and multiple counsel for single plaintiffs. (See, e.g., Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 994, 242 Cal.Rptr. 272.)
The NCAA also charges that "Stanford's complaint in intervention did not allege a violation of the right of privacy, and is completely neutral on the legality of drug testing." Therefore, it concludes, "Stanford's participation in
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this lawsuit was not necessary to enforce 'an important public right affecting the public interest[.]' "
Although this assertion ignores the record and the chronology of the positions Stanford asserted in the case, even if Stanford espoused the theory "belatedly," that would not defeat its claim for attorneys' fees. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1302-1303, 255 Cal.Rptr. 704.) "A litigant should not be penalized for failure to find the winning line at the outset, unless the unsuccessful forays address discrete unrelated claims, are pursued in bad faith, or are pursued incompetently, i.e., are such that a reasonably competent lawyer would not have pursued them.... None of these exceptions apply here." (Id. at p. 1303, 255 Cal.Rptr. 704.)
An appellate court is to infer all findings necessary to support a trial court's decision awarding attorneys' fees. (Beach Colony II v. California Coastal Com., supra, 166 Cal.App.3d at p. 110, 212 Cal.Rptr. 485.) An award of attorneys' fees will not be reversed on appeal unless there is a prejudicial abuse of discretion amounting to a manifest miscarriage of justice. (State of California v. County of Santa Clara (1983) 142 Cal.App.3d 608, 616, 191 Cal.Rptr. 204.) There has been no such abuse.
DISPOSITION
The judgment is affirmed. Appellant's motion to produce additional evidence is denied.
COTTLE and ELIA, JJ., concur.
The NCAA presently tests student-athletes as described, except for Stanford student-athletes who are protected by the permanent injunction.
Stanford has drug education programs and counseling available for all its students, not just athletes, although it makes a special effort to warn athletes about the use of steroids. Both Stanford and the NCAA believe that student-athletes should not be treated differently from other students, and Stanford believes it is wrong to single out athletes for drug testing.