Legal View: Can Josh Gordon Have His Suspension Overturned? (Updated)

As RotoViz’s resident bloodsucker lawyer, I decided to take a quick read through the 353 page of dense legalese that constitute the CBA and the Drug Policy in an attempt to render an opinion on Josh Gordon’s likelihood of success in his current appeal. The results were uninspiring for Gordon’s stockholders.

The reason for my pessimism is that the Drug Policy is pretty unambiguous regarding the testing procedure and the penalty, and by the letter of the Drug Policy, Gordon is gone for a year. Any investment in Gordon for this season is to rely on the arbitrator1 to use common sense and not the exact rules to render his decision.2
The Drug Policy states, as pertains to Gordon:3

“Discipline for Failure to Comply in Stage Three: A player who fails to cooperate with testing, treatment, evaluation or other requirements imposed on him by this Policy or fails to comply with his Treatment Plan, both as determined by the Medical Director, or who has a Positive Test, will be banished from the NFL for a minimum period of one calendar year.
Test of Split Sample: Any player Testing positive from the “A” bottle of his split sample may, within two days of receiving notification of his Positive Test, ask the Medical Advisor for a Test of the other portion of his specimen from the “B” bottle. Notwithstanding the foregoing, “B” bottle testing shall not be afforded to players who provide a dilute specimen that results in a dilute warning pursuant to Appendix A-1. The “B” bottle Test is to be performed within ten working days of such request. The player may not be present at the “B” bottle Test, but, at his own expense, he may be represented at the “B” bottle Test by a qualified toxicologist not affiliated with a commercial laboratory. The “B” bottle Test will be performed at the same laboratory that did the original Test. The “B” bottle Test need only show that the substance, revealed in the “A” bottle Test, is evident to the “limits of detection” to confirm the results of the “A” bottle Test.

Gordon was in Stage Three, tested above the limits for THC in the A sample, and the B sample confirmed the presence of a detectable amount of THC. Ergo, he’s banned for a full year, with no room for leniency. Now, the argument that Gordon is going to make is that the results are arbitrary and capricious — namely, that but for the random labeling of the bottles, he would have tested negative. It’s a good argument, but going by a strict interpretation of the rules, it doesn’t carry the day. Commentary from the NFLPA seems to support this viewpoint:

NFLPA spokesman Brian McCarthy confirmed to PFT that when the league’s disciplinary penalties were established 20 years ago, “the union expressed the strong view that they needed to be stated and mandatory to ensure that all players be treated the same regardless of position, experience, level of ability, or competitive considerations.” If the hearing officer determines the violation was “established,” Gordon will be “bound” to the one-year suspension. In other words, Gordon’s ban could not be reduced to six, eight, or ten games. If the hearing officer finds there was a violation of the league’s drug policy,

What I get from the above is that the arbitrary and capricious argument won’t4 fly for Gordon–he has to be treated strictly in accordance with the rules. The rules might lead to a bad result, but they need to be enforced uniformly. Similarly, the fact that the trace levels of THC may have been from second hand smoke should not impact the decision in Gordon’s favor either. Accordingly, the only way I see Gordon getting out of this is on an argument that the discrepancy between the samples in prima facie evidence of collection irregularities and that the entire test is void. Perhaps one of our scientifically inclined readers has some thoughts on this? Let us know in the comments.

Update #1: I spoke with a scientist, who said that the discrepancy between the two samples isn’t necessarily indicative of a collection or testing issue, though it could be related to collection/preservation issues, human error in testing, a flaw in the instruments used to test, such as the calibration being off. When she worked in the lab, they always took multiple samples because you need a larger sample size to get an accurate reading. In other words statistically, the larger the sample size, the more the analysis can correct for inaccuracies. Without knowing more, its impossible to tell whether an appeal on those grounds has any merit.

Ultimately, if I were a betting man, my money would be on Gordon getting suspended for a year unless the sample is determined to be void.

Update #2: Cedric Hopkins wrote an interesting and compelling article considering Josh Gordon’s legal option if he loses his appeal. This article is particularly important because in the above, I only considered the terms of the Drug Policy itself.5 Cedric takes the analysis further to consider Josh Gordon’s legal options under Ohio law following a unsuccessful appeal. Assuming Cedric correctly researched and represented the law (and I have no reason to think that he didn’t), I think that it is very possible, if not likely, that Gordon obtains an injunction against the NFL which would allow him to play pending resolution of his (future) lawsuit against the NFL. In short, I think the odds are low that Gordon wins his appeal at arbitration but very high6 that he obtains an injunction against his suspension following an unsuccessful appeal, which would theoretically enable him to play this season.

  1. Apparently, a Harold Henderson will hear Gordon’s appeal. Frankly, I’m not sure why that is the case. The Drug Policy states in relevant part that “Any dispute concerning the application, interpretation or administration of this Policy shall be resolved exclusively and finally through the following procedures . . . Any player who is notified that he is subject to a fine or suspension for violation of the terms of this Policy may appeal such discipline directly to the Commissioner . . . The Commissioner shall have exclusive and final authority to resolve all issues affecting the presentation of grievances and the conduct of appeals, including the timing and location of the hearing, the timeliness of grievances and appeals, access to information, and the relevance of evidence . . . Within a reasonable period of time, following the hearing, the Commissioner will issue a written decision which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties.  (back)
  2. In the legal world, shockingly, common sense can be a fleeting commodity. We tend to like our rules.  (back)
  3. My emphasis added.  (back)
  4. Or shouldn’t.  (back)
  5. Note that I stand by my analysis that Josh Gordon should be suspended according to the letter of the Drug Policy, a conclusion with which Cedric disagrees.  (back)
  6. See what I did there?  (back)
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