The Dynasty said:
Gordon's legal case, as I understand it, would be that the NFL's drug testing policies violate Ohio employer law. 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.” As everyone knows, Gordon's A cup tested over the limits, while his B cup tested under. Under Ohio law, this must cause a passing result. Precedence has already been set that the NFL, as the employer of every player, must abide by state laws where each player is employed. Whether or not Gordon can actually win this case is up in the air, but, I think it's strong enough to, at the very least, provide him with an injunction against the league that causes him to suit up. If it takes long enough--the Williams played two years for Minnesota before eventually serving their suspension--he should be able to suit up for all sixteen games.
DISCLAIMER: I picked Gordon in the seventh round of my 16-teamer two weeks ago.
Also, I realized now that I made a typo on my original post. I said I feel it's between fifty and seventy-five percent that he make it through the entire "decision" before it's decided. What I meant to say was that I think it's 50-75% that he makes it through the season. These court battles can potentially drag out for a very long time, a lot longer than the four months the season takes place.
Have said this before when the lawyer's article came about this. I believe saying the 16 on the "A" sample is the law's initial test and the 13.6 on the "B" sample is the law's confirmation test is wrong, and that it's pretty straightforward to tell that it is wrong.
Read the full text of the law and it specifies that the initial test is an immunoassay test. The confirmation test is a different, more accurate mass spectrograph test.
According to the Browns beat reporter,
When players in the NFL are drug-screened, two different tests are used. Gordon measured 38 nanograms per milliliter of THC on the immunoassay test, above the NFL's threshold of 20, the source said. Most other sports organizations have a 50 cutoff or higher to avoid second-hand smoke issue, the source said.
The second test involves an "A" sample and "B'' sample. If the "A'' sample is above the NFL threshold of 15 nanograms for this particular test, the "B'' sample is tested to confirm it. The source said Gordon measured 16 nanograms on the "A'' sample, just one above the NFL's threshold. He measured 13.63 nanograms on the "B'' sample, below the NFL cutoff.
So according to that the initial test required by the law was a 38 and failed. The confirmation test was a 16 which failed. The NFL does, at the player's request, a third test which would go beyond the requirements of the law and tests a second half of the sample using the confirmation test again. The NFL's standard for that test is just that evidence of THC is present. That one would be the 13.6.
The bulk of the media hasn't carried those details, so we have to ask ourselves does that version make sense, and more sense than the more widely reported one? (Edit to add: The more widely reported one does say the 13.6 is just tested for THC being present, incidentally, so it agrees on that part, it just omits any mention of whether an initial test was done before the 16.) I previously posted a link to
a testing lab's document that includes the differences between the initial immunoassay test and the confirmation test. It mentions:
Immunoassay:
The accuracy of the level calculated from the immunoassay is at best +/-10%. However, the test is fast and inexpensive. Levels calculated from the immunoassay are approximately 3 times higher than those from the confirmation because the confirmation test is sensitive to only one of the many THC metabolites.
The confirmation test measures the concentration of one chemical, the initial test measures the concentration of multiple chemicals so is expected to be several times higher.
So ask yourself, if the 16 was the initial test and 13.6 the confirmation test from the law as you are assuming, does 16 seem in the neighborhood of 3x more than 13.6? And since obviously it isn't, if the 16 were the initial immunoassay test in the Ohio law and the 13.6 was the confirmation mass spectrograph test, wouldn't that be a cornerstone of Josh Gordon's defense that the 16 and 13.6 shouldn't be so close? The 16 should have been in the 30s or 40s if, as you suggest, the 16 is the law's initial immunoassay test.
But it isn't. Gordon's defense was said to be that the 16 and 13.6 should be the same, which suggests in the eyes of the defense team, they were done with the same test. So Gordon's defense matches what you would expect if the details from the story are true, but his defense doesn't make sense if the 16 was the initial immunoassay test.
I'm not a lawyer, but I'm pretty sure the lawyer who brought the Ohio law thing has his tests confused. I imagine if the law did apply to the Browns, a court would have to decide how having 2 versions of the confirmation test being done and having them disagree would play into things. Would a court say the test on the A sample satisfied the law and anything beyond that didn't matter? Or would they decide both confirmation tests had to be negatives if 2 were done?
Or would the delay between the 2 confirmation tests be an issue? The player has to request the test of the B sample after he has been informed of his failed test, with 2 days to file his request and up to 10 days for the test result to be given, per the NFL policy.
A ruling could come down to scientific stuff like how long concentration levels in a sample stay constant, and is the amount of change reasonable based on that and based on the error range of the testing equipment. I have searched online, but never found a good answer to those questions. The closest I found said that samples for alcohol testing have to be tested within about 3 days while tests for drug samples have to be done within 3 weeks or else they are no longer suitable for testing. Obviously something about the sample deteriorates then, but I couldn't find anything definitive that suggested the THC concentration would drop as part of it, or at what rate.
I would imagine the defense team and NFL presented evidence on that kind of stuff though if it was pertinent. And digesting it all, if so, could be one explanation for the delay in a ruling.