Josh Gordon Will Look To Catch A Break With Strong Appeal
I fully expect Josh Gordon’s legal team to get the calendar-year ban lifted following his appeal this Friday.
I have defended clients in court who tested positive for drugs, challenged positive test results and cross-examined several lab technicians and doctors regarding drug test results. I started salivating when I saw the results of Gordon’s drug tests—as much as a shark, mosquito (or any other animal, insect, etc. you call lawyers) can salivate.
First is the arbitrary and completely random labeling of the “A” and “B” bottles of urine. That, alone, should be enough to get the suspension lifted.
Bottle “A” was a nanogram above the extremely low 15 ng/ml cut-off level (the
World Anti-Doping Agency raised its limit from 15 ng/ml to 150 ng/ml to account for secondhand smoke, among other things), while bottle “B” was below the limit.
Had bottle “B” been labeled “A” and tested first, the only reason we would be discussing Gordon would be arguing over whether he would be the No. 1 wide receiver this year or not. Instead, bottle “A” was labeled “A” and tested first so here we are.
Such arbitrariness should not control Gordon’s fate when it comes to his livelihood.
Here is something that is not arbitrary: the type of testing that is done in these cases.
Typically, the first urine sample is tested for a panel of different drugs. If that sample comes back positive for a particular substance, then the second urine sample is tested using a different, more specific form of analysis. That different analysis is called gas chromatography/mass spectrometry (GC/MS).
GC/MS identifies the drug molecules based on characteristic fragmentation patterns at specific retention times. In other words, GC/MS is a highly sensitive form of detecting the true and accurate level of the substance in the urine that is only usually done to confirm the first positive test.
If GC/MS was done on Gordon’s second sample and not the first, then the argument is that the true and accurate level of marijuana in his system was 13.63 ng/ml, not the 16 ng/ml that was in bottle “A.” That too, is enough to get his suspension lifted.
It’s been said that
Gordon will argue his urine was positive for marijuana (THC, actually) due to secondhand smoke. The cut-off level for marijuana is so low in the NFL that that argument is completely reasonable.
Remember back in 1998 when that snowboarder won the Olympic gold medal only to get it snatched away from him by the Olympic Committee because he tested positive for marijuana? That was Ross Rebagliati, and he tested positive for marijuana at 17.8 ng/ml.
Regabliati claimed the THC metabolite ended up in his system due to secondhand smoke. The Olympic Committee gave the gold medal back, mainly due to marijuana not being on the Olympics’ banned-substance list. So it’s not the first time we’ve heard the secondhand smoke argument.
Gordon’s secondhand smoke argument is problematic because the NFL holds these guys accountable for what goes into their bodies, which is also completely reasonable.
Then there is the chain-of-custody to examine, along with a host of other potential problems that come along with drug testing, including calibration of machines and certification of the labs where the testing was done—that’s where the details matter.
Gordon’s legal team, of course, has those details and will present them on Friday. Based on what’s been reported thus far, and what I know about Gordon's drug test results, I think the only types of hits Gordon will be taking are from defensive backs.
