Hill v. National Collegiate Athletic Assn.

Page 834

26 Cal.Rptr.2d 834

7 Cal.4th 1, 865 P.2d 633, 62 USLW 2491, 88 Ed. Law Rep. 327,

9 IER Cases 716

Jennifer HILL et al., Plaintiffs and Respondents, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant and Appellant Board of Trustees of Leland Stanford Junior University, Intervener and Respondent.

No. S018180.

Supreme Court of California In Bank.

Jan. 28, 1994.

Pillsbury, Madison & Sutro, C. Douglas Floyd, Craig E. Stewart, San Francisco, Swanson, Midgley, Gangwere, Clarke & Kitchin, George H. Gangwere, John J. Kitchin, Kansas City, MO, Archer & Hanson, Richard J. Archer and Kristina Hanson, San Francisco, for defendant and appellant.

Covington & Burling, Gregg H. Levy, Jeffrey Pash, Jeffrey S. Harleston, Washington, DC, Paul, Hastings, Janofsky & Walker, Robert F. Walker, Mary C. Dollarhide, Santa Monica, Schachter, Kristoff, Orenstein & Berkowitz, Victor Schachter and Thomas E. Geidt, San Francisco, as amici curiae on behalf of defendant and appellant.

Margaret C. Crosby, Alan L. Schlosser, Edward M. Chen, Keker & Brockett, Keker, Brockett & Van Nest, Robert A. Van Nest Susan J. Harriman, Michael J. Proctor and Karin Kramer, San Francisco, for plaintiffs and respondents.

Joseph R. Grodin, John M. True III, San Francisco, Saperstein, Mayeda, Larkin & Goldstein and Brad Seligman, Oakland, as amici curiae on behalf of plaintiffs and respondents.

Debra L. Zumwalt, San Francisco, Susan K. Hoerger, Palo Alto, Michael Roster, Los Angeles, Howard, Rice, Nemerovski, Canady, Robertson, Falk & Rabkin, Jerome B. Falk, Jr., and Steven L. Mayer, San Francisco, for intervener and respondent.

LUCAS, Chief Justice.

The National Collegiate Athletic Association (NCAA) sponsors and regulates intercollegiate athletic competition throughout the United States. Under the NCAA's drug testing program, randomly selected college student athletes competing in postseason championships and football bowl games are required to provide samples of their urine under closely monitored conditions. Urine samples are chemically analyzed for proscribed substances. Athletes testing "positive" are subject to disqualification.

Plaintiffs, who were student athletes attending Stanford University (Stanford) at the time of trial, sued the NCAA, contending its drug testing program violated their right to privacy secured by article I, section 1 of the California Constitution. Stanford intervened in the suit and adopted plaintiffs' position. Finding the NCAA's program to be an invasion of plaintiffs' right to privacy, the superior court permanently enjoined its enforcement against plaintiffs and other Stanford athletes. The Court of Appeal upheld the injunction.

By its nature, sports competition demands highly disciplined physical activity conducted in accordance with a special set of social norms. Unlike the general population, student athletes undergo frequent physical examinations, reveal their bodily and medical conditions to coaches and trainers, and often dress and undress in same-sex locker rooms. In so doing, they normally and reasonably forgo a measure of their privacy in exchange for the personal and professional benefits of extracurricular athletics.

A student athlete's already diminished expectation of privacy is outweighed by the NCAA's legitimate regulatory objectives in conducting testing for proscribed drugs. As a sponsor and regulator of sporting events, the NCAA has self-evident interests in ensuring fair and vigorous competition, as well as protecting the health and safety of student athletes. These interests justify a set of drug testing rules reasonably calculated to achieve drug-free athletic competition. The NCAA's rules contain elements designed to accomplish this purpose, including: (1) advance notice to athletes of testing procedures and written consent to testing; (2) random selection of athletes actually engaged in competition; (3) monitored collection of a sample of a selected athlete's urine in order to avoid substitution or contamination; and (4) chain of custody, limited disclosure, and other procedures designed to safeguard the confidentiality of the testing process and its outcome. As formulated, the NCAA's regulations do not offend the legitimate privacy interests of student athletes.

For these reasons, as more fully discussed below, the NCAA's drug testing program does not violate plaintiffs' state constitutional right to privacy. We will therefore reverse the judgment of the Court of Appeal and direct entry of final judgment in favor of the NCAA.

Statement of Facts and Proceedings Below

Plaintiffs' action for injunctive relief was tried to the court. We summarize the facts as revealed by the uncontradicted evidence in the record and the findings of the trial court.

The NCAA, a private association of more than 1,000 colleges and universities, was created to foster and regulate intercollegiate athletic competition. NCAA rules are made by member institutions, acting collectively and democratically at national conventions. Member institutions and college athletes are required to abide by NCAA rules as a condition to participation in NCAA-sponsored events.

1. Events Leading to the NCAA's Adoption of Drug Testing

In 1973, the NCAA enacted a rule prohibiting student athlete drug use. Ten years later, at the Pan American Games in Caracas, Venezuela, several college student athletes tested positive for prohibited drugs. Others withdrew from competition when faced with the prospect of testing. In response to the incident, the United States Olympic Committee (USOC) developed a drug testing program modeled after the program of the International Olympic Committee, which had been established in the early 1970's. Following the lead of the USOC, the NCAA began to study drug use among student athletes.

The NCAA commissioned Michigan State University to conduct a nationwide survey of college athlete drug use. The results revealed substantial use of a variety of drugs--8 percent of the athletes surveyed reported using amphetamines, 36 percent marijuana or hashish, 17 percent cocaine, and 4 percent steroids. Nine percent of football players reported using steroids at some time; six percent reported using steroids within the preceding twelve months.

In January 1984, the members of the NCAA's Pacific 10 Conference, including Stanford, introduced a resolution calling on the NCAA to adopt a mandatory drug testing program. The resolution recited that "the use of controlled substances and allegedly performance-enhancing drugs represents a danger to the health of students and a threat to the integrity of amateur sport."

Acting on the Pacific 10 Conference resolution, the NCAA created a special committee to study drug use and testing. The committee recommended a comprehensive drug testing program based on the Olympic model, concluding in part: "The NCAA has a legitimate interest in maintaining the integrity of intercollegiate athletics, including insuring fair competition and protecting the health and safety of all participating student athletes. The use of 'performance-enhancing' drugs by individual student-athletes is a violation of the ethic of fair competition, [and] poses a potential health and safety hazard to those utilizing such drugs and a potential safety hazard to those competing with such individuals. The most effective method of ensuring that student-athletes are not utilizing 'performance enhancing' drugs is through a consistent, national drug testing program."

At the NCAA's 1985 convention, the drug use and testing committee's proposal was referred back for further study and refinement. At the 1986 convention, the committee's revised proposal was adopted by an overwhelming vote of the member institutions. The NCAA's drug testing program has continued, with certain amendments, through the time of this appeal.

2. The NCAA Drug Testing Program

The NCAA prohibits student athlete use of chemical substances in several categories, including: (1) psychomotor and nervous system stimulants; (2) anabolic steroids; (3) alcohol and beta blockers (in rifle events only); (4) diuretics; and (5) street drugs. At the time of trial, sympathomimetic amines (a class of substances included in many medications) were also included in the NCAA's list of banned drugs. The NCAA has amended its rules to delete sympathomimetic amines from its list of proscribed substances.

Student athletes seeking to participate in NCAA-sponsored competition are required to sign a three-part statement and consent form. New forms must be executed at the beginning of each year of competition. The first part of the form affirms that the signator meets NCAA eligibility regulations and that he or she has duly reported any known violations of those regulations.

The second part of the form, entitled Buckley Amendment Consent, authorizes limited disclosure of the form, the results of NCAA drug tests, academic transcripts, financial aid records, and other information pertaining to NCAA eligibility, to authorized representatives of the athlete's institution and conference, as well as to the NCAA. The items of information to be disclosed are identified in the statement as "education records" pursuant to the federal Family Educational Rights and Privacy Act of 1974. (20 U.S.C. § 1232g.)

The final part of the form is a "Drug-Testing Consent" including the following provisions:

"By signing this part of the form, you certify that you agree to be tested for drugs.

"You agree to allow the NCAA, during this academic year, before, during or after you participate in any NCAA championship or in any postseason football game certified by the NCAA, to test you for the banned drugs listed in Executive Regulation 1-7(b) in the NCAA Manual.

"You reviewed the procedures for NCAA drug testing that are described in the NCAA Drug-Testing Program brochure.

"You understand that if you test positive (the NCAA finds traces of any of the banned drugs in...