“Facts are stubborn things.” —President John Adams
In the case of Josh Gordon, the facts are simple and irrefutable but have been ignored. If not ignored, the facts were disregarded.
And to be clear, I’m not here to argue whether Gordon should or shouldn’t be suspended—that ship has sailed. I’m here to make an accounting of the facts and try to come to some rational basis for the 10-game suspension because I have yet to come across such an explanation.
First, we have Gordon’s latest drug test results: one positive (16 ng/ml) and one negative (13.6 ng/ml). Or both negative if we’re using the new substance abuse policy cut-off level (35 ng/ml).
And that’s the question, isn’t it? Which standard was used to suspend Gordon for 10 games?
The new substance abuse policy raised the cut-off level for marijuana to 35 ng/ml. But the parties didn’t agree to apply that level to Gordon’s test; otherwise his test would’ve been negative.
Contradictory, however, they reduced Gordon’s suspension.
So the new levels don’t apply to Gordon’s “positive/negative” test but somehow his suspension gets reduced. Did Gordon use some type of cheat code with the NFL? Up, Up, Down, Down, Right Left, Right A, B, Select, Start. (If you were born after 1985, you’re now confused.)
Because if the new levels do apply to Gordon’s 16 ng/ml test, then it’s a clean test and there is no fourth violation.
Here’s a breakdown of sanctions under the new substance abuse policy:
- 1st Violation: Referral to NFL’s Substance Abuse Program
- 2nd Violation: 2-game fine
- 3rd Violation: 4-game fine
- 4th Violation: 4-game suspension
- 5th Violation: 10-game suspension
- 6th Violation: 1-year suspension
But let’s get back to the facts, because even the sanctions that go with the corresponding violations appear to be mere recommendations.
Gordon had two marijuana “incidents” in college. The first was where he was a passenger in a vehicle at a Taco Bell and fell asleep (presumably because he was high). The second was an actual positive drug test for marijuana. That’s two.
Then, when he was in the NFL, he ingested codeine from prescribed cough medication, and the notorious 16/13.6 ng/ml, positive/negative marijuana test. That’s two more.
There’s a lawyer joke where a client asks an accountant what two plus two adds up to and the accountant responds, “Four, of course.” The client asks a lawyer that same question and the lawyer responds, “What do you want it to add up to?”
In Gordon’s case, two plus two added up to five.
When you juxtapose Gordon’s four violations to the new substance abuse policy, mysteriously they add up to five violations because he was suspended for 10 games instead of 4 games for four violations.
(Credit to Michael Salfino for posting the Sesame Street video.)
If the new substance abuse policy doesn’t apply to Gordon, then there would be absolutely no reason to reduce his suspension. He tested dirty under the old policy and was disciplined under the old policy.
If the new policy does apply to him, then at most, he has three violations (2 in college & the codeine) and should’ve received a 4-game fine. Even assuming they tab Gordon with four violations, then that would equate to a 4-game suspension, not 10.
And that 4-game suspension requires us to separate out his two college violations and use them each as one violation. To do that (or better stated: for his representative to allow them to do that) is ludicrous. If that is what occurred, then Gordon’s advocate should’ve been pulling the college records of other players and using them against those players. Think: Mathieu.
So the new substance abuse policy kinda applies to Gordon and kinda not. The reason it didn’t apply, presumably, is because he tested positive in the 2013 league year, not the 2014 league year like Wes Welker. And when I say he tested positive in the old league year, I mean by about 15 days.
I gave my opinion on that issue already. The date of the test is irrelevant when it comes to a suspension. The more meaningful dates are (1) the date the NFL notifies Gordon they are exercising their discretion to suspend him and (2) the date Gordon’s suspension becomes final (following his appeal with the NFL). Up until those two latter dates, nothing in the NFL Substance Abuse Policy is triggered.
Dare I use an analogy to highlight the point?
If you have a 10-year warranty on a car and take it into the shop two weeks after that warranty expired for a problem that happened during the 10-year warranty period, the warranty won’t apply. You have to put the dealership on notice when you plan on using the warranty, during the actual warranty period.
In the Gordon’s case, a problem happened with Gordon (the car) during the old warranty period (old substance abuse policy) but the NFL (car’s owner) waited until the new warranty period to act on it (suspend him). The new “warranty” (new substance abuse policy) should, therefore, apply, not the old one.
But Gordon loses that battle, as well. He loses the battle, apparently, because the NFL has proof (his drug test) that he tested positive in the old NFL league year. But that begs the question: Why reduce his suspension at all?
Based on statements from Gordon’s camp a legal battle seemed all but inevitable. Three weeks ago, I contacted Maurice Suh, Gordon’s lawyer, and asked about getting clarification as to Gordon filing a lawsuit, to which Suh replied, “We may very well be in touch.” It appears that ship too has, unfortunately, sailed.
Gordon’s case was (is?) laced with solid legal claims. He has claims relating to the NFL applying arbitrary and capricious standards to him, restricting his ability to enter into an agreement with the Canadian Football League (restrain of trade), antitrust issues, breach of contract issues and even claims of the breach of duty of fair representation against the NFLPA.
The claim that carries significant weight is regarding his drug test. Under Article 41 of the Collective Bargaining Agreement, each NFL team is required to provide worker’s compensation coverage to the players under the laws of their state.
The worker’s compensation laws in Ohio require that both drug tests be above the employer’s cut-off level in order to be considered a positive drug test. Gordon could’ve (could?) used this claim to argue his drug test was negative and that the substance abuse policy is in violation of state law.
Based on Gordon’s tweets and statements, it appears he has thrown in the towel and accepted his suspension.
"I'm happy that the NFLPA and NFL worked hard to agree on a new Substances of Abuse policy," Gordon stated via a statement issued through the NFLPA.
"I'm very thankful to my union for fighting for a significant reduction in my suspension. I'm glad I can go to the facility during my suspension. I look forward to going to meetings, working out individually, and learning from my coaches and teammates. I can't wait until game 11 to get back on the field."
This is bigger than Josh Gordon, though. Gordon has a chance to fix an obvious flaw in the substance abuse policy. Doing so will help current and future NFL players who end up in a similar situation.
He also has an opportunity to hold the NFL (and his union and union representative) accountable for how his suspension was reduced to 10 games and not four.
Perhaps Gordon is foregoing his legal claims because he just feels lucky to play this year. Perhaps he wants a fresh start for the 2015 NFL season.
He will play in six games this year and in so doing, he will accrue another year on his contract—his final year. He’ll be able to negotiate a contract without having the Browns, or any other team, having the 10-game ban as leverage against him. Maybe he wants to show other teams that he’s able to accept responsibility for his actions and has changed.
Whatever the reason, it appears Gordon has decided against litigation and is focusing on football. Sometimes clients with the strongest of cases just want to settle and be done with the case. Gordon is that client. But has anyone told Gordon he can still accept the suspension and fight it in court to see if it gets thrown out? He doesn’t have to ask to stay the suspension while the court battle ensues.
The full quote from John Adams is, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” He said that while defending British Soldiers for killing Americans during the Boston Massacre Trials. He wasn’t well liked for doing so, but he stood up for the facts and the law. Gordon should do the same.
The fact is Gordon’s suspension doesn’t add up, no matter how you spin his violations. But the fact also is Gordon doesn’t care, at least not enough to do something about it. It’s time for us to collectively build a bridge and get over it.