Friday, November 2, 2007
Broncos' Henry to have appeal heard Nov. 16
By Len Pasquarelli
The appeal of Denver Broncos tailback Travis Henry, who is battling to avoid a one-year suspension for violation of the NFL substance abuse policy, and who is suing the league as part of that attempt, is scheduled for Nov. 16 in New York.
But there are a number of variables that could delay the appeal until later in the season, and which might allow Henry to continue playing. Two weeks ago, various Denver media outlets reported that the appeal was set for Nov. 5, but that was only the date suggested by the NFL, and the two sides finally agreed it was not a convenient one.
League sources told ESPN.com they would prefer to have Henry's situation resolved by the end of this month, but conceded the complexities of the case, with the involvement of the courts, might make that difficult.
Henry, 29, tested positive for a banned substance, believed to be marijuana, in August. Because he was already in phase two of the substance abuse program at the time of the test, having served an earlier four-game suspension, he is subject to a one-year ban.
The issue being challenged by Henry is that the NFL would not allow his expert to observe the testing of so-called the "B-sample" of his specimen. Although the collective bargaining agreement permits a player to have an expert present for the testing, league vice president Greg Aiello said that expert cannot be affiliated with any laboratory.
The expert presented by Henry, Dr. William Closson of Long Island, N.Y., did have such an affiliation. The NFL provided Henry with the names of 10 independent experts as reference for his potential use.
In an affidavit filed by Henry on Sept. 18 as part of his court action, the Denver tailback stated: "There is no valid reason why any unlawful substance would be in my urine. This must be a mistake." He also noted in the affidavit: "If I fail this test, I will be suspended for one year from my employment, and will be obliged to repay all signing bonuses paid to date. ... I will be prejudiced if my expert cannot observe these tests."
Henry's original suit was filed in a state court in New York, which granted him a temporary restraining order. The league successfully quashed the order, however, by having the case moved to a federal court, because, it argued, interpretation of the NFL collective bargaining agreement falls under the jurisdiction of federal law. The NFL is attempting to have Henry's case dismissed.
Last week, one of Henry's attorneys filed a motion in U.S. District Court charging that the NFL violated the temporary restraining order by testing the second sample.
It is possible that Henry could lose his appeal with the league before his case goes to trial. If that occurs, he might pursue further court action to allow him to keep playing.
It is believed that, if the case goes to trial, Henry's attorneys will argue that the low levels of tetrahydrocannabinol (THC) in his urine sample do not meet league thresholds, and could have registered as a result of second-hand marijuana inhalation. Henry has said that he will submit to a lie detector test and provide hair samples to support his innocence. Henry was said to have been in New York this week meeting with his attorneys.
In 2005, while with the Tennessee Titans, Henry was suspended four games for violating the substance abuse program. He would have rotated out of the program on Oct. 1 had he not had any subsequent positive tests before that. Citing confidentiality guides, league officials have not commented on Henry's status in the substance abuse program.
Henry signed a five-year, $22.5 million contract with the Broncos in March, only days after his release by the Titans to avoid paying him an $8 million roster bonus. The deal included a $6 million signing bonus to be paid in three installments. There is also a $6 million option bonus. If Henry is suspended, the Broncos would likely attempt to recover part of the bonus money already paid, and withhold future payments due him.
A seven-year veteran, Henry is currently the ninth-leading rusher in the league. He has carried 119 times for 549 yards and one touchdown. He missed Monday night's game with bruised ribs, but has practiced this week and is expected to start Sunday when the Broncos play at Detroit.
Len Pasquarelli is a senior NFL writer for ESPN.com.