By now you've heard that the NFL & NFLPA are working to finalize a revamped Substance Abuse Policy and Josh Gordon and other players' suspensions may or may not be lifted, reduced, vacated, whatever. In Gordon's case the new, higher (see that?) 50 ng/ml marijuana level would allow him to play immediately, if the new policy applies to him.
First of all, I should disclose that I am selfishly coveting Gordon v. NFL. I’m especially curious to see how Gordon’s lawyer will challenge the ambiguous and arbitrary drug testing protocol. But that's for another day. Maybe.
In an earlier article I detailed how notice of the suspension, in the legal sense, applies to Gordon’s case. The notice argument alone should allow Gordon to be included in the new substance abuse policy. [Read that argument here.]
Having said that, I wanted to provide one more basis that will support Gordon being included in the new, revamped substance abuse policy.
The second legal concept that could apply to Gordon’s case is one involving retroactive application of a new law that comes into effect while a criminal case is active.
Here’s a hypothetical: You were charged and convicted of a crime in the Winter of 2013 and immediately filed an appeal after the conviction. Sometime in 2014, the Court of Appeals affirms your conviction.
In the above hypothetical, your conviction does not become final until the Court of Appeals affirms your conviction. So if a new law is enacted while your case is on appeal, you get the benefit of that law.
How does this apply to Gordon? In a legal sense, I would argue (and believe) that Gordon’s suspension didn’t become final until his appeal was decided. Harold Henderson decided Gordon’s appeal on August 27.
But then I see tweets like this:
The new policy shouldn’t reassess based on when the drug violations occurred, as Rosenthal suggests, but rather when the suspensions occurred.
There are three reasons why the NFL and NFLPA will look at when the suspensions occurred and not when the drug violations occurred.
First, the drug violations (assuming Rosenthal means the positive drug test) encompass drug use that could have occurred over multiple unknown days. It’s too speculative to say which day the actual violation (use of marijuana) took place.
Secondly, the NFL didn’t issue Gordon’s suspension until the new league year. That’s the notice issue.
Finally, and perhaps most importantly, Gordon’s suspension didn’t become final until the completion of his appellate process with the NFL, which was also in the new league year.
There is no question in my mind that Gordon is going to play this year. There are too many legal arguments he can make that will allow him to do so.
The “public policy” argument also works in his favor: The NFL suspended Gordon on August 27, 2014 and Wes Welker on September 3, 2014. That’s exactly one week apart from one another.
It’s unimaginable for these two guys to be treated differently simply because they got high at different times. When the dust finally settles, the suspension dates (or when the appeals were finally decided) will be the deciding factor, not when they toked up.
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