Factors on Josh Gordon's hearing

July, 30, 2014
Jul 30
7:30
PM ET
Josh GordonDavidDermer/Diamond Images/Getty ImagesJosh Gordon will have a chance to appeal a one-year minimum NFL suspension in a hearing on Friday.
The Josh Gordon stew was put on boil Tuesday when details about the arguments Gordon's side reportedly will present Friday became public through ESPN's Adam Schefter and Pro Football Talk.

One of the arguments his attorneys will present at his appeal to avoid a one-year minimum ban from the NFL will be to blame secondhand smoke for a positive marijuana test. The other will state that he gave two samples, one of which was barely above the NFL threshold, the other below.

Here are a few thoughts to consider:

  • The defense is compelling and interesting. However, the process has to play out.
  • To pretend Gordon is not a repeat offender denies reality. He had an incident at Baylor in which he and a teammate fell asleep in a Taco Bell drive-through line in the wee hours of the morning and police reportedly found a bag of marijuana in the car. According to NFL.com, Gordon failed three marijuana tests in college, including one at Utah, where he transferred after he was dismissed from Baylor for what he told the Houston Chronicle was a failed marijuana test. He’s had problems in the NFL -- speeding tickets, a DWI, a car pulled over with the smell of marijuana wafting out of it with him driving, the positive test. List that pattern about anyone, and eyebrows would rise. That he’s a marvelous athlete does not change that reality.
  • The secondhand smoke argument likely won't hold much water. How can a guy who has had at least three violations of the substance abuse policy -- the general trigger for a suspension -- continually put himself in situations in which he risks a suspension?
  • The league looks at substance abuse policies as a medical program. Initial positive tests are treated with treatment and counseling. Players are given second and third chances. When a fourth chance is needed, drastic steps might be needed. The performance-enhancing drug program, per the league’s view, is about the integrity of the game. And the league does not feel comparing NFL thresholds for marijuana -- 15 nanograms of concentration of a drug per millimeter -- to those of the World Anti-Doping Agency -- 150 ng/ml -- is appropriate because WADA tests for performance-enhancing drugs, and the NFL does not consider marijuana a PED.
  • Players are responsible for what goes in their bodies. That’s a simple tenet that is a foundation of the league’s drug testing programs for PEDs and banned substances.
  • Other players have already been suspended this year for not recognizing what was in their body. Colts defensive end Robert Mathis got four games for a fertility drug that raised his testosterone level. The principle remains.
  • The one interesting claim that Gordon will make involves the two urine samples collected. The first, according to reports, tested positive at 16 ng/ml, which was just above the threshold of 15. The second -- the B sample -- was at 13.6. The legal team will say the disparity indicates secondhand smoke. Still, the 16 was a positive test.
  • What’s also interesting is that Gordon evidently is not claiming a flawed process or a mixed-up sample or a mishandled sample. Those are lame excuses (baseball's Ryan Braun) that do not deny taking anything, merely call the process into question. Gordon is saying, evidently, that he did not smoke any pot.
  • Yes, marijuana is legal in three states. Yes, it’s a recreational drug. But the league has wanted HGH testing for years. Recently, word broke that a new policy that included HGH testing would include reduced penalties for marijuana. Perhaps Gordon is caught in the middle here as the two sides hammer out these details, because no new agreement on policies and procedures has been reached.
  • Looming over everything here is the NFL’s decision to suspend Ravens running back Ray Rice for two games for domestic violence when video evidence showed him dragging his unconscious then-fiancée out of an elevator. Two games seems inexplicable. How, folks ask justifiably, can Gordon lose one year for being one ng/ml over the limit when Rice allegedly knocks out his now-wife and loses just two games?
  • The Rice/Gordon comparison is a bit apples and oranges. Substance abuse penalties have been negotiated in the collective bargaining agreement, and agreed to by both sides. Personal conduct also was negotiated, and decisions were left in the hands of the commissioner. The one-year ban for failing a test at this point is written in the CBA.
  • For folks who suggest ignoring the rule, negotiated with hours of sweat and discussion, I bring back ex-NBA commissioner David Stern. When it was put to him that one-game suspensions for leaving the bench during the playoffs were not fair, he said: “It’s a rule. What other rule should we choose to ignore? The traveling rule? The out-of-bounds rule? It’s a rule in our books.” Would players like it if teams decided to ignore the rule mandating one off day per week during training camp, which is also in the CBA?
  • The answer also lies in multiple violations for Gordon and not for Rice, but the anger over the weight of the punishment considering the gravity of the two incidents remains.

Pat McManamon

ESPN Cleveland Browns reporter

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