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.
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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.
