How Josh Gordon Fits Into The New Substance Abuse Policy

Written by  Cedric Hopkins September 07, 2014
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The Josh Gordon saga would’ve made one hell of a reality show. First he’s suspended, then there’s the long, drawn out NFL appeal process.

A lawsuit seemed imminent, even to the point where the court clerk’s office was waiting in anticipation for the filing to occur.

Then there’s this car salesman business, and now we have the NFL and NFLPA working on what I’ll call The New Deal: a revamping of the Substance Abuse Policy.

And just like President Roosevelt’s New Deal, the NFL’s New Deal can provide the “3 Rs: Relief, Recovery, and Reform.” Relief for the unemployed Gordon, Recovery of the NFL’s declining PR, and Reform of the drug testing levels to prevent a repeated debacle.

This New Deal will, reportedly, bump up the testing threshold level of marijuana to 50 ng/ml and replace the ridiculously low 15 ng/ml level that’s in effect right now.

What’s also being reported is the NFLPA is bidding to get some suspensions revisited under The New Deal. Of course, if Gordon’s drug test is filtered through The New Deal, he walks—right onto to the playing field.

From the tone and tenor of DeMaurice Smith’s statements made to 106.7 The Fan in Washington, D.C. on Friday, that’s exactly what the NFLPA is fighting for:

“If we get a deal done that covers players in this league year, I don’t like that we punish players under a deal active in the old league year,” Smith said. “We don’t want players to suffer because the union and the league couldn’t get it done before the league year.”

The problem for Gordon is that he tested positive for marijuana not in the 2014-15 year, but in the 2013 league year. The new league year began March 11, 2014. Gordon tested positive in the Winter of 2013.

So how can the NFLPA make a tangible and legitimate argument to include Gordon in The New Deal?

Let’s look at how it works in a legal setting.

When you file a lawsuit against someone, the other side probably doesn’t know about it or the date that you filed it. And the other party doesn’t have to respond until they know about the lawsuit. That suit you filed doesn’t mean anything until you give the other side “notice.”

The date you gave notice to the opposing party is the date that triggers events and/or deadlines. For example, if Gordon sues the NFL in Ohio, the NFL will have 28 days from the date they are served with the lawsuit to respond, not the date Gordon actually files.

The reason dates aren’t triggered until notice is given is because the moving party, or the one who has the right to affect the other party, has the choice to actually go through with it or not. That’s called discretion.

The NFL’s Substance Abuse Policy affords that discretion to Roger Goodell (or Goodell’s assigned designee). When Goodell received Gordon’s positive test result, he had the choice (or discretion) to actually act on it. He didn’t let Gordon know he was going to act on it until after March 11, 2014.

So when it comes to whether or not Gordon is included in The New Deal, the effective date should be the date Goodell put Gordon on notice that he was exercising his discretion under the substance abuse policy. Because up to that point, Gordon didn’t know Goodell was going to exercise his discretion under the Substance Abuse Policy to suspend him. Or at least that’s what I think the NFLPA should be arguing.

If the NFLPA loses that argument—and we should know early next week if it will—then I still think Gordon files a suit against the NFL and obtains an injunction and plays this season. 

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Cedric Hopkins

Cedric Hopkins Bio

Cedric Hopkins runs this sports law/fantasy football blog. If you have issues with it, it's all his fault. Cedric was an athlete-student at the University of New Mexico (Basketball - Go Lobos!). He then morphed into a student-athlete when he attended law school in San Diego. Age replaced athleticism and now he writes appellate briefs for criminals (alleged criminals, of course) in state and federal cases, including writing U.S. Supreme Court briefs.

For years Cedric has researched and written about legal issues but maintained a love for sports. With, he's combining his two passions: researching and writing about sports. When he's not in court arguing a case before a judge (or writing about himself in the third person), he'll be doing the same with his articles on Follow me, er, him on Twitter (opens in a new window).

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