Sabertooth
Footballguy
Hoping we hear something this week. I just offerend Allen Robinson for him but alas, I was rebuffed.
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WR Josh Gordon, KC (1 Viewer)
- Thread starter Matt Waldman
- Start date
I just thought of a way for Gordon to miss only half the 2014 season.
What if the arbitrator waits until week 9 to announce his ruling?
What if the arbitrator waits until week 9 to announce his ruling?
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georg013
Footballguy
Where did this come from?I nominate Bazinga for the lamest name, avatar, and sig.Bazinga! said:Soulfly3 said:Old news Brosephine...PatsWillWin said:We? You just posted about 11 times about Prater back when you thought it helped your argument 20 minutes ago.Soulfly3 said:Is that where we're at now?
Ignoring that even the Browns are confident he's playing this year and focusing on Prater?
Ya... This is what I expected
Get with 8:11pm est. Browns preparing for Gordon to be out PART of the season.
It's like Ive been telling ya'll... But I guess sometimes, it takes 136 pages to make your point. But Im persistent.
Proust Loves Cake
Footballguy
For posterity.Soulfly3 said:
Soulfly3
Footballguy
PatsWillWin
Footballguy
Yes you are the 30th person to post this, and it is utter non-sense. The only way you could so decisvely view the long appeal time as clear evidence for Gordon having a "strong case" is if you are looking for evidence to show that Gordon has a strong case.
Soulfly3
Footballguy
The evidence for a 16 game suspension was so strong that 3 weeks later they still cant confirm it
YYou're totally right
PatsWillWin
Footballguy
My evidence for the 16 game suspension is that he currently has a 16 game suspension.
Ilov80s
Footballguy
Soulfly3
Footballguy
you'll be able to repeat this for a few more days and still be factually correct
so, let 'er fly!
PatsWillWin
Footballguy
Here's my thinking, which I think is unbiased. I'm not a Gordon owner and think a lot of the Gordonites are being pretty ridiculous and I will enjoy laughing at some of them, but ultimately, I really don't care that much if he plays or not.
This was Pettine's quote:
"I wasn't sending a message," Pettine said Sunday afternoon during a conference call. "Knowing that the decision is looming, that we're fairly certain that we're not going to have him for at minimum some part of the year, we wanted to make sure that we were getting repetitions with the guys that were going to be out there early."
So, despite Soulfly's asinine interpretation of this quote, the Browns have actually acknowledged that they are planning to be without Gordon for at least part of the year. Using basic english skills, it's clear to me that this does not mean the opposite is true, that they are certain that they will only be missing him for part of the year, but good luck trying to convince Soulfly et. al of that.
We also have reports that the two sides are not negotiating. We also have reports that this is an "all or nothing" situation. The only issue in front of the arbitor is whether or not Gordon failed the drug test. Gordon's defense seems to have something to do with arguing that it was second hand smoke (which I'm not even sure would matter) and/or "hey, I didn't fail the confirmation test as badly." Be that as it may, the information we have is that it's all or nothing.
Well, Pettine just told you that even the Browns are not expecting it to be nothing. So if that information we've previously heard is correct, that only leaves one option - all. If the arbitor says yes, you failed, then all we have here is a very simply case of a player in Stage 3 of the program getting an appropriate (per the CBA) 16 game suspension.
Of course this has nothing to do with all of the fantasy Matlocks here who think they've discovered the legal arguments that make the NFL's drug policy completely illegal, but I've already posted enough about that and frankly, find it too absurd to devote more time to.
The only other thing I'd address re: the legal thing is this: it seems to be the position of Gordonites that all Gordon's legal team is put up a flimsy lawsuit, get an injunction and hold it off for a year. Even if he loses the lawsuit, he could still then play for 2014, like the Williams' did.
My issue with this is that it assumes that Gordon and his team feel that the best thing for Gordon would be to play 2014, even if it means pushing a lawsuit that is likely to fail, and forcing Gordon to face the suspension next season. I am not convinced, at all, that this is true. If I were advising Gordon and didn't think the lawsuit was legit, I would think that it'd be best to get it over with now, clean up your act, and come back as soon as your are resinstated and try and get your life in order. I have no idea why Gordonites would assume that Gordon & Co. would prioritize 2014 over 2015. Maybe they would, but I wouldn't assume that, which many are.
If the arbitor confirms that he failed the drug test, and the suspension is upheld, I don't believe that there would be a lawsuit by Gordon. Both because I don't think it would have any merit, and because I am not convinced that they would go all-in to try and play for 2014.
This was Pettine's quote:
"I wasn't sending a message," Pettine said Sunday afternoon during a conference call. "Knowing that the decision is looming, that we're fairly certain that we're not going to have him for at minimum some part of the year, we wanted to make sure that we were getting repetitions with the guys that were going to be out there early."
So, despite Soulfly's asinine interpretation of this quote, the Browns have actually acknowledged that they are planning to be without Gordon for at least part of the year. Using basic english skills, it's clear to me that this does not mean the opposite is true, that they are certain that they will only be missing him for part of the year, but good luck trying to convince Soulfly et. al of that.
We also have reports that the two sides are not negotiating. We also have reports that this is an "all or nothing" situation. The only issue in front of the arbitor is whether or not Gordon failed the drug test. Gordon's defense seems to have something to do with arguing that it was second hand smoke (which I'm not even sure would matter) and/or "hey, I didn't fail the confirmation test as badly." Be that as it may, the information we have is that it's all or nothing.
Well, Pettine just told you that even the Browns are not expecting it to be nothing. So if that information we've previously heard is correct, that only leaves one option - all. If the arbitor says yes, you failed, then all we have here is a very simply case of a player in Stage 3 of the program getting an appropriate (per the CBA) 16 game suspension.
Of course this has nothing to do with all of the fantasy Matlocks here who think they've discovered the legal arguments that make the NFL's drug policy completely illegal, but I've already posted enough about that and frankly, find it too absurd to devote more time to.
The only other thing I'd address re: the legal thing is this: it seems to be the position of Gordonites that all Gordon's legal team is put up a flimsy lawsuit, get an injunction and hold it off for a year. Even if he loses the lawsuit, he could still then play for 2014, like the Williams' did.
My issue with this is that it assumes that Gordon and his team feel that the best thing for Gordon would be to play 2014, even if it means pushing a lawsuit that is likely to fail, and forcing Gordon to face the suspension next season. I am not convinced, at all, that this is true. If I were advising Gordon and didn't think the lawsuit was legit, I would think that it'd be best to get it over with now, clean up your act, and come back as soon as your are resinstated and try and get your life in order. I have no idea why Gordonites would assume that Gordon & Co. would prioritize 2014 over 2015. Maybe they would, but I wouldn't assume that, which many are.
If the arbitor confirms that he failed the drug test, and the suspension is upheld, I don't believe that there would be a lawsuit by Gordon. Both because I don't think it would have any merit, and because I am not convinced that they would go all-in to try and play for 2014.
PatsWillWin
Footballguy
I don't know, and I don't care. Just the fact that Pettine acknowledges it is extremely significant, IMO. They could be 100% certain, but he just wanted to couch it that way to the media. I don't know the man, and find it pointless to speculate how another human being would use certain words in a certain context. The point, to me, is that it was a public acknowledgement that he is and is going to remain suspended. That, in combination with the information we have about it being an all-or-nothing situation, which makes sense given the issue before the arbitor, is not good for you and your ilk. In my opinion.
Soulfly3
Footballguy
but he explicitly said "at minimum some part of the season"... which completely refutes that it's a certainty that it's all or nothing
it's a possibility, but Im sure the coach is kept in the loop enough to know that other possibilities are on the table
like the 4-6 weeks Ive claimed itd be from day 1
MAC_32
Footballguy
this thread may have remained bearable if you had just left it at that.
PatsWillWin
Footballguy
Like I said, I think he could've easily been couching it in such a way to not give any information on how they think the appeal will turn out.
It seems pretty clear that the issue before the arbitor is whether or not Gordon failed the test. We have information on the argument Gordon is making, and it's all centered around the test. If so, then the arbitor is just going to rule on the test. It doesn't make sense that the arbitor would reduce the suspension - I'm not even sure if he/she/they would have the authority to. The question is did he fail the test or not? If he did, 16 games, if he did not, 0 games.
The only way, in my opinion, that he could be suspended for less than that is if the two sides negotiate a settlement. That seems extremely unlikely, both because of the reports we've had saying they are not talking and due to the long time this has been going on - if the two sides thought there was a mutual benefit to negotiating, I think they would have done so by now. You and your crew take this fact and are like "Well obviously they aren't negotiating because Gordon's legal team thinks his case is so strong." I don't think there's any reason to read the delay/lack of settlement as a pro-Gordon thing. I find that completely baseless. It could be, of course. But it could also be for the opposite reason (the NFL not wanting to negotiate, particularly as Gordon gets these DUI's while the appeal is pending) or could have nothing to do with the strength of EITHER side and really be about the testimony details, etc.
shadyridr
Footballguy
more like you inhaled some second hand smoke
Proust Loves Cake
Footballguy
Hardly. Not sure what's so impressive about anonymously supporting a position cobbled together with a lot misinformation and hope for a particular outcome. Besides, he will vanish as soon as the year (indefinite) suspension is formally announced.Ditka Butkus said:
Franknbeans
Footballguy
He's Josh mother f'in Gordon
Soulfly3
Footballguy
Why would I disappear? Said a million times he could get 16 games
Just because I took the strong stance that he wont, doesnt mean much in the scheme of things.
Ill take some heat, but so what?
If he happens to get less, Ill be a legend. Ok, not a legend... But like... A name that some ppl will remember for a few months
Isnt that what we all want in life? To be FBG famous for a short period of time? Bucket list type stuff
Just because I took the strong stance that he wont, doesnt mean much in the scheme of things.
Ill take some heat, but so what?
If he happens to get less, Ill be a legend. Ok, not a legend... But like... A name that some ppl will remember for a few months
Isnt that what we all want in life? To be FBG famous for a short period of time? Bucket list type stuff
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PatsWillWin
Footballguy
Your heirs will read this at your eulogy, and the story will past down to your children's children's children.
Anarchy99
Footballguy
I'm beginning to feel that both sides will be right. I see Gordon getting levied the full year suspension and having to apply for reinstatement, but I see his legal team appealing and getting the case heard AFTER the season is over. Gordon plays 16 games in 2014 (if he can stay out of trouble), loses his appeal, and misses all of 2015.
Soulfly3
Footballguy
Itll at least go down as one of the SPs best and funniest reads
Your heirs will read this at your eulogy, and the story will past down to your children's children's children.
DaveGrumbles
Footballguy
Then mark me down for Gordon missing between 0-4 games in 2014.
After reading details of the US Appeals decision that went against the NFL in the Starcaps case, plus the fact that Ohio law dictates that Gordon's test was negative...I have to mostly agree with BigSeph's prediction. The NFL is not in a position of strength here and will either back down from a long suspension or be tied up in court for a couple years before finally losing on the precedent already set by Starcaps. Third option is of course the two sides just agree to settle this with a slap on the wrist suspension and save Gordon some legal fees and the NFL some face. Anyway you put it, I think Josh Gordon is suiting up for the great majority of games this season.
Of course he'll then tear his ACL in week 1 rendering all of this moot.
I believe there are no more appeals within the collectively bargained-for arbitration process. The next appeal, therefore, would be to the courts.
I don't think there's a realistic chance that a court would grant an injunction barring the enforcement of Gordon's suspension while his case is being heard. One of the prongs of that analysis is the likelihood of succeeding on the merits, and there's no realistic chance that Gordon would actually win that appeal.
In general, a court will not set aside an arbitrator's ruling merely for being wrong. The standard is much more exacting than that. To be set aside by a court, an arbitrator's ruling must not simply be wrong; it must be the result of fraud (e.g., bribery), incapacity (e.g., the arbitrator's BAC was higher than Gordon's), or something else pretty extraordinary (e.g., the arbitrator got the wrong result on purpose -- not by misinterpreting the law, but by interpreting it correctly and then intentionally misapplying it).
I mean, it's really, really hard. Judges are loathe to upset an arbitrator's decision except in the most unusual of cases. Unless the arbitrator does something really unusual -- much more unusual than simply getting everything wrong -- Gordon will have no chance of convincing the court that he's likely to win on the merits and is therefore entitled to injunctive relief.
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PatsWillWin
Footballguy
This is not a fact. This is just wrong.
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PatsWillWin
Footballguy
To be sure, Cedric Hopkins disagrees with me. But he makes some statements in that article that strike me as rather questionable.
For example, he quotes part of the Ohio Administrative Code that says "All specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative" as if it were in Gordon's favor. But Gordon's specimen didn't test negative on the initial test or the confirmatory test. Both were positive. Hopkins says that the confirmatory test was negative, but he cites nothing in Ohio law or in the NFL's drug policy that supports that statement. Ohio law, so far as I can tell, doesn't dictate what blood concentration is required for a test by a private-sector employer to be positive; and the NFL's drug policy says that anything above zero on the confirmatory test is positive.
Moreover, even if Hopkins is right about that aspect of the Ohio Administrative Code -- even if some code section I haven't seen says that Gordon's confirmatory test must be deemed negative for purposes of the Ohio Drug-Free Workplace Act -- I don't think the Ohio Drug-Free Workplace Act does what Hopkins thinks it does. I'm no expert in this area of law, especially in Ohio, but I've skimmed a bit, and as far as I can tell, the Ohio Drug-Free Workplace program is a voluntary program that employers may participate in so that their workers' comp premiums are reduced. (Here's an overview.) If an employer fails to comply with the statutory requirements of the Ohio Drug-Free Workplace Act, it doesn't mean that employees can't be disciplined for having drugs in their system. It means, rather, that the employer won't get discounted workers' comp premiums.
I could be wrong about that, but nothing Hopkins has cited leads me to believe that I am.
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DaveGrumbles
Footballguy
Ohio law defers to federal dept of health and human services for cut off levels. According to those levels the inital test must be 50 nanograms and a confirmation test must be at least 15 nanograms to be considered a positive test (Gordon's was 13 and change I think). Now the NFL's initial cut off levels are more stringent but they cannot be less stringent than Ohio requirements in order to adhere to state law.
Whatever minor discipline they face by not adhering to the law (losing insurance discounts, etc) is meaningless since the real ramification would be that it opens the NFL to legitimate legal claims by Gordon. By voluntarily participating in the drug-free workplace program the Browns are bound to follow the legal requirements of the program, correct? Again, playing amateur attorney here but the above seems like the hold up to me.
GregR
Footballguy
Thanks for the opinions MT. 
Was thinking, if the ruling from Henderson will be year suspension, it would make sense for the arbitrator to delay to try to get them to negotiate, as both sides have something to gain. Gordon a shorter suspension, the NFL an end to the matter rather than a lawsuit.
But if the ruling was going to be no suspension at all, he'd just give his ruling, right? It doesn't seem like he'd delay to encourage Gordon to negotiate a worse settlement than the ruling would be.
So I guess I'm feeling like the fact it's delayed this long is perhaps a fair sign the ruling will be the full year. Not that that would be any surprise. Unless there is some other cause for the delay. I just can't think of one. Feels like "digesting scientific testimony" wouldn't have run this long.
Was thinking, if the ruling from Henderson will be year suspension, it would make sense for the arbitrator to delay to try to get them to negotiate, as both sides have something to gain. Gordon a shorter suspension, the NFL an end to the matter rather than a lawsuit.
But if the ruling was going to be no suspension at all, he'd just give his ruling, right? It doesn't seem like he'd delay to encourage Gordon to negotiate a worse settlement than the ruling would be.
So I guess I'm feeling like the fact it's delayed this long is perhaps a fair sign the ruling will be the full year. Not that that would be any surprise. Unless there is some other cause for the delay. I just can't think of one. Feels like "digesting scientific testimony" wouldn't have run this long.
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If this is the case, ALL of the Seattle Seahawks should be able to smoke as much as they want while in state, and not working or practicing or training of course. only in sparse free time. All medical Marijuana states should follow suit. The NFL may have to drop it's BS Marijuana policy once and for all!
*Edit: Broncos as well.
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I think that's true true for state employees. I don't see where the statute says it's true for private-sector employees.
"The initial drug testing protocol for state employees and applicants for state employment shall use an assay technique which meets federal department of health and human services requirements. Drug classes and cutoff levels be those established by the federal department of health and human services." (123:1-76-04)
I don't see where employees are given a private right of action against employers under the Drug-Free Workplace Act. Again, I could be wrong, but based on what I've read so far, it seems that the penalty for an employer's failure to comply is forfeiting the discounted workers' comp premiums.
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DaveGrumbles
Footballguy
Appreciate the input. Either way it's gonna be interesting once the arguments from both sides are known.
Ohio law doesn't say anything about Seahawks players. For them, we'd have to look at whatever drug-testing laws Washington has in place. As far as I can tell, there aren't any -- meaning that the NFL and the Seahawks can make up whatever drug-testing rules they want as far as the state of Washington is concerned.
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Yes, I really wish the arbitration briefs by both sides had been leaked somewhere.
PatsWillWin
Footballguy
The last 20 posts have been more useful/informative than the previous 2,000. Thank you.
By the way, the above is a big difference between the Gordon case and the StarCaps case. In the Gordon case, Gordon's appeal is being presided over by a neutral arbitrator, which means that courts aren't going to overturn it just for being wrong.
In the StarCaps case, when the Williams duo was suspended, they had to "appeal" not to a neutral arbitrator, but to the NFL's general counsel, Jeff Pash. He was referred to as an "arbitrator" at the time, but the courts did not consider the NFL's general counsel to be a neutral arbitrator. So an injunction was easier to get.
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bleachercreacher
Footballguy
I work in a lab that runs drug screens, and from what I understand we use the same analyzer that the lab processing NFL samples uses. A coworker of mine actually has a second job collecting these sample for the NFL and MLB, so I've picked his brain a little over the years. Do you know if it actually says above zero on the confirmatory test, or if it says above the cutoff values? Everyone is going to get a positive value on a drug test, but we establish cutoff values with each new lot of reagent. The result has to be above this cutoff value to be positive. Anything within 10 of the cutoff value, either way is considered boarderline and we will take the best 2 out of 3 runs. We will then run a second sample if requested, and it is either positive or negative based on the cutoff. I'm only asking because if the actual NFL cutoff says zero, it would be impossible for the B sample to be negative.
Donnybrook
Footballguy
How does one get a job as an arbitrator? Do you get to take a 4 week vacation before delivering any decision?
GregR
Footballguy
The NFL's test policy is at http://images.nflplayers.com/mediaResources/files/PDFs/PlayerDevelopment/2010%20Drug%20Policy.pdf
They split the sample and send the A sample out for testing. They don't specify the details of that test. That is they don't state for example whether it's a two stage test with an immunoassay followed by a GC-MS.
If that test is found positive, above 15 ng/mL per the document, the player is notified and has 2 days from notification in which he can request the B sample be tested. The B sample must be tested within 10 working days of the request. Exact quote on the B sample test:
Have mentioned this before so sorry for the repetition, but it's kind of crucial to the discussion. Part of the issue seems, to me, to be that there is confusion over the tests actually done and where they fit in the NFL's test policy. The Browns beat writer reported Gordon's tests of the A sample scored a 38 on the immunoassay and a 16 on the GC-MS. The B sample scored a 13.6. That's the only media account that addresses that the two tests took place on the A sample.
Most of the media, including the article MT mentions from the lawyer, treat it like the 16 from the A sample is from an "initial" test mentioned in the Ohio law being discussed, which the law specifies to be an immunoassay. The initial leaks about the test had 2 results. The Ohio law being discussed has 2 tests. So they are treating them like the 2 tests they have heard results of are the 2 tests in the Ohio law, which would amount to the 16 being an immunoassay on the A sample and the 13.6 being a GC-MS on the B sample after Gordon requests it be tested.
I believe the Browns beatwriter version is correct. That in essence the NFL policy is, the testing of the A sample is the 2 stage test called for in Ohio law. After which the player can request a test of the B sample that has no parallel in the requirements of the Ohio law, and which has the cutoff mentioned in the quote above.
Reportedly Gordon got a 38 immunoassay (NFL cutoff of 20 per beatwriter) and a 16 GC-MS (cutoff of 15 per all the media and the NFL pdf) on the tests of the A-sample. He got a 13.6 on a GC-MS on the NFL-only extra confirmation test where the cutoff is the "limits of detection". Which is why MT is saying all the tests were positive with regards to their cutoffs.
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GregR
Footballguy
So interested if you could give us some of your knowledge.
Do you know anything about what happens to samples over time? I found a document that mentioned alcohol tests needed to be done in 3 days of the sample collection, but that samples for drug tests lasted longer and should be tested within 3 weeks.
We don't know exact timeline, but the policy would have the A sample collected and sent to the lab and tested. The NFL notified by the lab. Gordon notified. Gordon requesting within 2 days that the B sample be tested. Then somewhere within 10 working days the B sample gets tested. So the intervening time between the test of the A and B samples could be anywhere from a couple of days to over 2 weeks.
Would you expect changes in the test result to occur as the sample ages? That's one of the questions that I think would have to be addressed in Gordon appealing that his B sample test is below the threshold of the test the A sample was put through, though the cutoff for the B sample test done later was different per the NFL's policy. Understanding if the concentration varies as the sample gets older might explain things like why the players agreed to a drug policy that had the looser cutoff on the B sample test, rather than requiring both samples pass the 15 ng/mL cutoff.
Do you know anything about what happens to samples over time? I found a document that mentioned alcohol tests needed to be done in 3 days of the sample collection, but that samples for drug tests lasted longer and should be tested within 3 weeks.
We don't know exact timeline, but the policy would have the A sample collected and sent to the lab and tested. The NFL notified by the lab. Gordon notified. Gordon requesting within 2 days that the B sample be tested. Then somewhere within 10 working days the B sample gets tested. So the intervening time between the test of the A and B samples could be anywhere from a couple of days to over 2 weeks.
Would you expect changes in the test result to occur as the sample ages? That's one of the questions that I think would have to be addressed in Gordon appealing that his B sample test is below the threshold of the test the A sample was put through, though the cutoff for the B sample test done later was different per the NFL's policy. Understanding if the concentration varies as the sample gets older might explain things like why the players agreed to a drug policy that had the looser cutoff on the B sample test, rather than requiring both samples pass the 15 ng/mL cutoff.
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Bamac
Footballguy
Maurile, I have one issue on which I disagree. If Gordon argues in court that state law prohibits his suspension, I don't think the court would defer to the arbitrator on the question of whether (and to what extent) state law applies.
That said, I agree that Gordon likely would fail to secure a TRO.
That said, I agree that Gordon likely would fail to secure a TRO.
