WR Josh Gordon, KC (6 Viewers)

[ROYALWITCHEESE]

Mary Kay Cabot ‏@MaryKayCabot 46s

Source said #Browns Josh Gordon expecting a decision on suspension appeal in one to three weeks.

AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH

Finally the proof we need that the rapture happened and we've all been left behind

Proof that Mary knows exactly jack crap. That's not news!

 

[Kool-Aid Larry]

commish is waiting 'til the day after his fantasy draft

 

[georg013]

Interesting.

 

[GoodLloydHaveMercy]

Ok not feeling too awful abt buying him for Fauria and baby hawk... Top 10 WR this yr?

 

[Ojaays]

Ok not feeling too awful abt buying him for Fauria and baby hawk... Top 10 WR this yr?

Easily

 

[Bracie Smathers]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohio’s Drug-Testing Laws Applied To Gordon’s Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFL’s cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As I’m sure you know by now, the NFL divides a player’s urine into two bottles: bottles “A” and “B.” If bottle “A” is positive for the THC metabolite, then bottle “B” is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle “B” contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the league’s discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only “specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.” If the NFL is bound by Ohio law, Gordon’s confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordon’s case, once the confirmation test showed Gordon was under his employer’s threshold amount for marijuana, the test was “negative” under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordon’s case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFL’s Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

That’s not Gordon’s claim.

Gordon isn’t asserting he is immune from the NFL’s discipline for violations of the policy. He’s arguing (or should be) there simply was no violation.

As shown above, Gordon’s drug test, carried out to its completion, did not meet the definition of “positive drug result,” under Ohio law. The secondary claim for Gordon would then be that the NFL’s drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they won’t sue each other over—the Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFL’s finding that his drug test was positive—or at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

 

[DansRams]

Ok not feeling too awful abt buying him for Fauria and baby hawk... Top 10 WR this yr?

Easily

no chance

 

[PlasmaDogPlasma]

I'm taking Maurice Suh 1.1

 

[PatsWillWin]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohio’s Drug-Testing Laws Applied To Gordon’s Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFL’s cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As I’m sure you know by now, the NFL divides a player’s urine into two bottles: bottles “A” and “B.” If bottle “A” is positive for the THC metabolite, then bottle “B” is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle “B” contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the league’s discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only “specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.” If the NFL is bound by Ohio law, Gordon’s confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordon’s case, once the confirmation test showed Gordon was under his employer’s threshold amount for marijuana, the test was “negative” under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordon’s case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFL’s Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

That’s not Gordon’s claim.

Gordon isn’t asserting he is immune from the NFL’s discipline for violations of the policy. He’s arguing (or should be) there simply was no violation.

As shown above, Gordon’s drug test, carried out to its completion, did not meet the definition of “positive drug result,” under Ohio law. The secondary claim for Gordon would then be that the NFL’s drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they won’t sue each other over—the Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFL’s finding that his drug test was positive—or at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

 

[ROYALWITCHEESE]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

 

[Dinsy Ejotuz]

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

Now let's pretend that HGH is against the law in one or more individual states where the NFL plays, and that employers in that state are legally permitted to test for it.

 

[MoveToSkypager]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

 

[PatsWillWin]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

It's obviously not so straightforward, otherwise every single NFL suspension would be ignored since, hey, it's not the teams suspending its players, just this random third party called the NFL.

 

[Bracie Smathers]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from:

(Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

 

[MoveToSkypager]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from:

(Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

 

[Bamac]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

State law can create employee rights, which effectively remove rights from employers -- be they national or local. That's what Ohio law is doing here. No different than a state minimum wage.

 

[donkshow]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from: (Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

One of them was negative.

 

[Bracie Smathers]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from:

(Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

Both were not positive.

The NFL used a split sample, the initial test crossed the arbitrary threshold that the NFL had established.

The second part of the split sample did not cross the threshold but the NFL policy states that the confirmatory sample does not have to cross the threshold of the first sample. The second sample fell below the threshold and that might be good nuff for the NFL policy but it is not good enough under Ohio code thus the NFL has no legal means to suspend Josh Gordon.

Their are numerous issues with the NFL's substance abuse policy and the capricious nature of one sample crossing their threshold and the second not crossing it is a glaring error. I could list off a few more but the NFL's case is DOA IMHO.

 

[Proust Loves Cake]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from: (Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

One of them was negative.

13.6 ng/ml is not negative.

 

[PatsWillWin]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

State law can create employee rights, which effectively remove rights from employers -- be they national or local. That's what Ohio law is doing here. No different than a state minimum wage.

So again, does the NFL have to adjust it's drug policy to fit all of the states they have teams in?

 

[MoveToSkypager]

There*. You did it multiple times, I figured it was no longer a typo.

Both tests were positive.

The first test: If sample A was higher than 15 ng/mL (right? I forget) then it's a +, if under, then -

The second test: If sample B had greater than 0 ng/mL then it's a +. If 0, then -.

You and others might be getting wrapped up in the quantitative value of sample B, which is irrelevant.

 

[Proust Loves Cake]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

State law can create employee rights, which effectively remove rights from employers -- be they national or local. That's what Ohio law is doing here. No different than a state minimum wage.

Not when there is collective bargaining on this.

 

[jdswan922]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from: (Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

One of them was negative.

13.6 ng/ml is not negative.

By NFL guidelines, it is.

 

[cdubz]

So the links that guy is using is part of "Chapter 123:1-76 Drug-Free Workplace Program". Has anyone found anything that says that is an actual state law as to how other employers need to administer tests? This sounds like the requirements for THE STATE'S OWN TESTING for state employees.

http://das.ohio.gov/Divisions/HumanResources/HROperations/DrugFreeWorkPlace.aspx

Apologies if I am completely off base here, just think people are running with those rules when I don't think they have anything to do with how other employers administer tests.

 

[ROYALWITCHEESE]

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

Now let's pretend that HGH is against the law in one or more individual states where the NFL plays, and that employers in that state are legally permitted to test for it.

HGH is illegal without a prescription and medically documented need.

 

[MoveToSkypager]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from: (Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

One of them was negative.

13.6 ng/ml is not negative.

By NFL guidelines, it is.

Not when it's the qualitative test.

 

[MoveToSkypager]

If I were Gordon's lawyers, I'd much rather dig into the error on the machines than this other stuff. If I remember, sample A was a fairly close call.

 

[Proust Loves Cake]

Hi Bracie Smathers,

Why do you read

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.

to mean the B test must be positive on the quantitative portion? In the context of the test, it was positive on the qualitative portion of the test.

Also, what other legal barriers would you expect to see? I particularly do not understand why the NFL would write a CBA so clumsy as to be overridden by state law after state law. Don't they pay their lawyers enough for this kind of foresight? Would it be possible for an Ohio judge to consider this and dismiss it?

Thanks

I didn't read anything into anything,, that is a direct quote from: (Ohio Code 123:1-76-07),

Not my interpretation. That is a direct quote from Ohio code and their isn't any equivocation, it states in black-and-white that if either the initial or confirmatory tests are negative then the test is negative. How in the world can anyone read anything into that other than what it clearly states?

Ohhh. Since both tests are positive, what's the problem?

One of them was negative.

13.6 ng/ml is not negative.

By NFL guidelines, it is.

This is not an issue of semantics. The sample B cup was non-positive. That does not in any way mean that it was negative.

 

[Dinsy Ejotuz]

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

Now let's pretend that HGH is against the law in one or more individual states where the NFL plays, and that employers in that state are legally permitted to test for it.

HGH is illegal without a prescription and medically documented need.

Well, awesome then. All we need is a state law that says sports teams in that state can test for it and the NFL teams in that state can implement HGH testing without going through the CBA.

 

[Proust Loves Cake]

From the NFL Drug Policy:

The "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test.

The results of the "B" bottle confirmed the results of the "A" bottle Test. Very straight-forward. No magic behind this.

 

[Bayhawks]

So the links that guy is using is part of "Chapter 123:1-76 Drug-Free Workplace Program". Has anyone found anything that says that is an actual state law as to how other employers need to administer tests? This sounds like the requirements for THE STATE'S OWN TESTING for state employees.

http://das.ohio.gov/Divisions/HumanResources/HROperations/DrugFreeWorkPlace.aspx

Apologies if I am completely off base here, just think people are running with those rules when I don't think they have anything to do with how other employers administer tests.

I think you are right. The code the article is citing refers to Ohio's Drug-free workplace program; it deals with state employees, not companies that operate within the state.

 

[bushdocda]

I'm rooting for this burnout and his team of potterneys.

 

[amnesiac]

if the attorneys think arguing state law is their best bet, then it most likely is.

if they can get the suspension pushed back while the legal process plays out, it is good news short term for Gordon.

 

[ROYALWITCHEESE]

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

Now let's pretend that HGH is against the law in one or more individual states where the NFL plays, and that employers in that state are legally permitted to test for it.

HGH is illegal without a prescription and medically documented need.

Well, awesome then. All we need is a state law that says sports teams in that state can test for it and the NFL teams in that state can implement HGH testing without going through the CBA.

Haha true. But why would owners want their players off the field?

 

[MoveToSkypager]

I'm rooting for this burnout and his team of potterneys.

I've always been a big fan of freedom.

 

[Bracie Smathers]

If I were Gordon's lawyers, I'd much rather dig into the error on the machines than this other stuff. If I remember, sample A was a fairly close call.

Their are so many issues with the NFL's substance abuse policy I don't know where to start but my initial reaction was to go after the data since it is an obvious metrology issue if one split sample crossed the NFL's own arbitrary threshold. The NFL's own arbitrary threshold is what constitutes a 'positive' test. The fact that they state that their NFL policy has a confirmatory test that does not have to cross their own arbitrary threshold opens up a huge loophole and that loophole could be attacked in numerous ways.

You and I both feel that Gordon's defense team should get the data in order to explain how two tests of the exact same sample could possibly have two different results, one positive and one negative and they would find ample evidence to show tons of issues with statistics or they could go after the credation of the machines and the operators, techs, etc. Their are five creditory bodies for metology that span the globe so any lawyer could destroy a test that had two different results but they don't have to do that since Ohio code won't allow for a split sample to have two different results.

Also, re-read the very last sentence of that article I quoted.

This is the next step that Gordon's defense can take IF Gordon loses his appeal.

They then file a TRO to prevent the NFL from suspending him and then it could be really bad news for the league so I think the NFL is trying to work out some sort of deal with JG.

This is all assuming he loses his appeal, which he shouldn't.

 

[Proust Loves Cake]

If I were Gordon's lawyers, I'd much rather dig into the error on the machines than this other stuff. If I remember, sample A was a fairly close call.

Their are so many issues with the NFL's substance abuse policy I don't know where to start but my initial reaction was to go after the data since it is an obvious metrology issue if one split sample crossed the NFL's own arbitrary threshold. The NFL's own arbitrary threshold is what constitutes a 'positive' test. The fact that they state that their NFL policy has a confirmatory test that does not have to cross their own arbitrary threshold opens up a huge loophole and that loophole could be attacked in numerous ways.

You and I both feel that Gordon's defense team should get the data in order to explain how two tests of the exact same sample could possibly have two different results, one positive and one negative and they would find ample evidence to show tons of issues with statistics or they could go after the credation of the machines and the operators, techs, etc. Their are five creditory bodies for metology that span the globe so any lawyer could destroy a test that had two different results but they don't have to do that since Ohio code won't allow for a split sample to have two different results.

Also, re-read the very last sentence of that article I quoted.

This is the next step that Gordon's defense can take IF Gordon loses his appeal.

They then file a TRO to prevent the NFL from suspending him and then it could be really bad news for the league so I think the NFL is trying to work out some sort of deal with JG.

This is all assuming he loses his appeal, which he shouldn't.

Wrong or right, it's going to be a real bummer for Gordon's legal team this whole mechanism was collectively bargained.

 

[Dinsy Ejotuz]

He's boiling it down to Gordon being an employee of the Cleveland Browns, which he is. The NFL does not pay him.

Now let's pretend that HGH is against the law in one or more individual states where the NFL plays, and that employers in that state are legally permitted to test for it.

HGH is illegal without a prescription and medically documented need.

Well, awesome then. All we need is a state law that says sports teams in that state can test for it and the NFL teams in that state can implement HGH testing without going through the CBA.

Haha true. But why would owners want their players off the field?

They don't, and I don't think this would ever actually happen (even if it were possible). Just pointing out that if, somehow, the CBA isn't what governs player-management relations in the NFL it would open Pandora's box.

 

[Bracie Smathers]

If I were Gordon's lawyers, I'd much rather dig into the error on the machines than this other stuff. If I remember, sample A was a fairly close call.

Their are so many issues with the NFL's substance abuse policy I don't know where to start but my initial reaction was to go after the data since it is an obvious metrology issue if one split sample crossed the NFL's own arbitrary threshold. The NFL's own arbitrary threshold is what constitutes a 'positive' test. The fact that they state that their NFL policy has a confirmatory test that does not have to cross their own arbitrary threshold opens up a huge loophole and that loophole could be attacked in numerous ways.

You and I both feel that Gordon's defense team should get the data in order to explain how two tests of the exact same sample could possibly have two different results, one positive and one negative and they would find ample evidence to show tons of issues with statistics or they could go after the credation of the machines and the operators, techs, etc. Their are five creditory bodies for metology that span the globe so any lawyer could destroy a test that had two different results but they don't have to do that since Ohio code won't allow for a split sample to have two different results.

Also, re-read the very last sentence of that article I quoted.

This is the next step that Gordon's defense can take IF Gordon loses his appeal.

They then file a TRO to prevent the NFL from suspending him and then it could be really bad news for the league so I think the NFL is trying to work out some sort of deal with JG.

This is all assuming he loses his appeal, which he shouldn't.

Wrong or right, it's going to be a real bummer for Gordon's legal team this whole mechanism was collectively bargained.

CBA doesn't prevent a player from suing the NFL over discrepancy with penalties meted out under the Substance abuse policy.

.Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.



The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other over the Substance Abuse Policy is not listed.

So if JG loses his appeal he would file a TRO and take the next step if the NFL insisted on suspending him unless they both agree to work out a deal which is the logical thing for both sides to agree to.

 

[Bamac]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

State law can create employee rights, which effectively remove rights from employers -- be they national or local. That's what Ohio law is doing here. No different than a state minimum wage.

So again, does the NFL have to adjust it's drug policy to fit all of the states they have teams in?

It's unclear. For one, it's not obvious what -- the employer or the statute -- defines "positive" and "negative". But the Ohio legislature *can* force a national employer to conform to its drug testing laws. The only questions, I think, are (1) whether whether the NFL has done so here and (2) whether the NFL is Gordon's employer.ETA: and (3) whether Ohio law is preempted by federal law, per the CBA.

 

[MoveToSkypager]

Yeah, I'd not only get the raw data (GC/MS data is pretty straightforward) but the lab is going to have to open up their books completely. Sample prep, lab performance records, service records (is everything recent?), carrier gas purity, lab employee professional/academic records (has anyone had any suggestion of being dishonest?). If this happened where I work, I'd ####. This would be way worse than an IRS audit.

 

[Proust Loves Cake]

If I were Gordon's lawyers, I'd much rather dig into the error on the machines than this other stuff. If I remember, sample A was a fairly close call.

Their are so many issues with the NFL's substance abuse policy I don't know where to start but my initial reaction was to go after the data since it is an obvious metrology issue if one split sample crossed the NFL's own arbitrary threshold. The NFL's own arbitrary threshold is what constitutes a 'positive' test. The fact that they state that their NFL policy has a confirmatory test that does not have to cross their own arbitrary threshold opens up a huge loophole and that loophole could be attacked in numerous ways.

You and I both feel that Gordon's defense team should get the data in order to explain how two tests of the exact same sample could possibly have two different results, one positive and one negative and they would find ample evidence to show tons of issues with statistics or they could go after the credation of the machines and the operators, techs, etc. Their are five creditory bodies for metology that span the globe so any lawyer could destroy a test that had two different results but they don't have to do that since Ohio code won't allow for a split sample to have two different results.

Also, re-read the very last sentence of that article I quoted.

This is the next step that Gordon's defense can take IF Gordon loses his appeal.

They then file a TRO to prevent the NFL from suspending him and then it could be really bad news for the league so I think the NFL is trying to work out some sort of deal with JG.

This is all assuming he loses his appeal, which he shouldn't.

Wrong or right, it's going to be a real bummer for Gordon's legal team this whole mechanism was collectively bargained.

CBA doesn't prevent a player from suing the NFL over discrepancy with penalties meted out under the Substance abuse policy.

.Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.



The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other over the Substance Abuse Policy is not listed.

So if JG loses his appeal he would file a TRO and take the next step if the NFL insisted on suspending him unless they both agree to work out a deal which is the logical thing for both sides to agree to.

Anybody an sue any entity. Gordon can file whatever lawsuit(s) he wants. Good luck with that. He failed multiple drug tests his labor representatives collectively bargained. I know it's vogue in this thread to consider what ifs and all the mental gymnastics that's kind of fun to ponder in a fantasy world of make believe. But, at the end of the day, he tested positive for marijuana (again), his bottle "B" sample did him no favors at all, and he is subject to proscribed punishments under the CBA. He's done for the year.

Stay clean, JG, and get reinstated for 2015.

 

[MoveToSkypager]

Stay clean, JG, and get reinstated for 2015.

That's gonna be a tough one. Even if he finds a way out of this, no way he doesn't pop a test within a year.

 

[PatsWillWin]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

State law can create employee rights, which effectively remove rights from employers -- be they national or local. That's what Ohio law is doing here. No different than a state minimum wage.

So again, does the NFL have to adjust it's drug policy to fit all of the states they have teams in?

It's unclear. For one, it's not obvious what -- the employer or the statute -- defines "positive" and "negative". But the Ohio legislature *can* force a national employer to conform to its drug testing laws. The only questions, I think, are (1) whether whether the NFL has done so here and (2) whether the NFL is Gordon's employer.ETA: and (3) whether Ohio law is preempted by federal law, per the CBA.

The link with the laws doesn't really go into any detail about is considered a positive or negative or inconclusive test. Must be up to the employer.

Anyway, we'll see. Either Gordon goes away or he has a groundbreaking case that will cause an overhaul in the entire substance abuse program.

 

[Bracie Smathers]

Yeah, I'd not only get the raw data (GC/MS data is pretty straightforward) but the lab is going to have to open up their books completely. Sample prep, lab performance records, service records (is everything recent?), carrier gas purity, lab employee professional/academic records (has anyone had any suggestion of being dishonest?). If this happened where I work, I'd ####. This would be way worse than an IRS audit.

Other people here don't seem to get this but it appears you do.

This is something that the NFL muckity-mucks don't seem to get either and in fact I don't think Josh Gordon's defense team 'get it' either because this would be the easiest case in the world to defense if they just get the data.

Its like the movie the Untochables where the accountant kept saying, 'Hey we can take down Capone because under the tax code' and Elite Ness and the rest of the guys kept patting him on the head and giving him cookies till they finally 'got it'.

One sample, two results.

For anyone who understands the implications, game over.

 

[Proust Loves Cake]

Stay clean, JG, and get reinstated for 2015.

That's gonna be a tough one. Even if he finds a way out of this, no way he doesn't pop a test within a year.

Yeah, I wouldn't be optimistic given his track record, either. It's mind-blowing when you consider what a clown this guy is and how important pot is to him.

 

[Proust Loves Cake]

Yeah, I'd not only get the raw data (GC/MS data is pretty straightforward) but the lab is going to have to open up their books completely. Sample prep, lab performance records, service records (is everything recent?), carrier gas purity, lab employee professional/academic records (has anyone had any suggestion of being dishonest?). If this happened where I work, I'd ####. This would be way worse than an IRS audit.

Other people here don't seem to get this but it appears you do.

This is something that the NFL muckity-mucks don't seem to get either and in fact I don't think Josh Gordon's defense team 'get it' either because this would be the easiest case in the world to defense if they just get the data.

Its like the movie the Untochables where the accountant kept saying, 'Hey we can take down Capone because under the tax code' and Elite Ness and the rest of the guys kept patting him on the head and giving him cookies till they finally 'got it'.

One sample, two results.

For anyone who understands the implications, game over.

You do understand that the samples from the same specimen can show different concentrations of THC when tested at different time points, right? I'll look it up, but I doubt the difference between bottle A and B were statistically significant (i.e., they were within the margin for error), especially considering bottle A was tested initially and then bottle B was tested.

 

[Bamac]

Pertinent information from the previously linked but not copied article.

http://fieldandcourt.com/component/k2/item/246-what-to-expect-if-josh-gordon-loses-his-appeal.html.

Ohios Drug-Testing Laws Applied To Gordons Case

The strongest claim Gordon will argue is that under Ohio law (but using the NFLs cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.

As Im sure you know by now, the NFL divides a players urine into two bottles: bottles A and B. If bottle A is positive for the THC metabolite, then bottle B is used to confirm what was in bottle "A."

According to Section I©(3)(e) of the NFL's Substance Abuse Policy, as long as bottle B contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the leagues discipline.

Ohio law differs.

Under Ohio law (Ohio Code 123:1-76-07), only specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative. If the NFL is bound by Ohio law, Gordons confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.

But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I©(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."

Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.

The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.

Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.

And in Gordons case, once the confirmation test showed Gordon was under his employers threshold amount for marijuana, the test was negative under state law. The NFL found otherwise, contradicting state law.

The difference between the StarCaps case and Gordons case is critical.

The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFLs Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.

Thats not Gordons claim.

Gordon isnt asserting he is immune from the NFLs discipline for violations of the policy. Hes arguing (or should be) there simply was no violation.

As shown above, Gordons drug test, carried out to its completion, did not meet the definition of positive drug result, under Ohio law. The secondary claim for Gordon would then be that the NFLs drug-testing policy, as implemented, violates Ohio state law.

...Agreement Not To Sue

Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.

The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they wont sue each other overthe Substance Abuse Policy is not listed.

What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFLs finding that his drug test was positiveor at least he should.

Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn't.

So in order for a national company to have a drug test policy, they have to adjust it for each of the 50 states (if they have employees in each state)? That seems a little nuts to me. Ohio state laws are built around legal violations, which can lead to you having your freedom taken away by the government. I don't really see how that applies to the NFL. I get that the article says exactly that (that it DOES apply), but that just seems off to me.

State law can create employee rights, which effectively remove rights from employers -- be they national or local. That's what Ohio law is doing here. No different than a state minimum wage.

So again, does the NFL have to adjust it's drug policy to fit all of the states they have teams in?

It's unclear. For one, it's not obvious what -- the employer or the statute -- defines "positive" and "negative". But the Ohio legislature *can* force a national employer to conform to its drug testing laws. The only questions, I think, are (1) whether whether the NFL has done so here and (2) whether the NFL is Gordon's employer.ETA: and (3) whether Ohio law is preempted by federal law, per the CBA.

The link with the laws doesn't really go into any detail about is considered a positive or negative or inconclusive test. Must be up to the employer.

Anyway, we'll see. Either Gordon goes away or he has a groundbreaking case that will cause an overhaul in the entire substance abuse program.

Haha. Just because the article doesn't say who defines "positive", it's not safe to assume a court would conclude the employer decides. And Gordon's case would be less groundbreaking than the Williams case.

 

[MoveToSkypager]

Yeah, I'd not only get the raw data (GC/MS data is pretty straightforward) but the lab is going to have to open up their books completely. Sample prep, lab performance records, service records (is everything recent?), carrier gas purity, lab employee professional/academic records (has anyone had any suggestion of being dishonest?). If this happened where I work, I'd ####. This would be way worse than an IRS audit.

Other people here don't seem to get this but it appears you do.

This is something that the NFL muckity-mucks don't seem to get either and in fact I don't think Josh Gordon's defense team 'get it' either because this would be the easiest case in the world to defense if they just get the data.

Its like the movie the Untochables where the accountant kept saying, 'Hey we can take down Capone because under the tax code' and Elite Ness and the rest of the guys kept patting him on the head and giving him cookies till they finally 'got it'.

One sample, two results.

For anyone who understands the implications, game over.

You do understand that the samples from the same specimen can show different concentrations of THC when tested at different time points, right? I'll look it up, but I doubt the difference between bottle A and B were statistically significant (i.e., they were within the margin for error), especially considering bottle A was tested initially and then bottle B was tested.

Don't know how this lab works, but lots of GC/MS machines have a "robot" where several samples are loaded into a grid of tubes, then the method is run. For multiple reasons, if I were testing Josh Gordon's piss, I'd do it on the same "run". I don't think degradation due to time would be an issue. But I don't know how they run their lab, just giving you my pov.

 

[MoveToSkypager]

Stay clean, JG, and get reinstated for 2015.

That's gonna be a tough one. Even if he finds a way out of this, no way he doesn't pop a test within a year.

Yeah, I wouldn't be optimistic given his track record, either. It's mind-blowing when you consider what a clown this guy is and how important pot is to him.

Sometimes people gotta learn lessons the hard way.