Josh Gordon Could Avoid Year Long Suspension if His "Second Hand Smoke" Defense Works
By Jason Lisk
Josh Gordon, facing a one-year suspension, has his appeal hearing set for Friday. According to Pro Football Talk, the appeal will focus on the difference between the “A” and “B” samples, while ESPN also adds that the legal team plans to make an argument that it is the result of second hand smoke.
By the letter of the Drug Policy, Gordon is in trouble. He has to have been in what is called Stage 3 of the program in order to be subject to a year suspension. It also doesn’t matter that Gordon was tested 70 times and passed. By the terms of the drug policy, once he moves into stage 3, he can be subjected to as many as 10 tests a month. You don’t get positive credit for passing previous tests.
The discrepancy between Gordon’s “A” and “B” samples is slight. The “A” sample was slightly above the cutoff. The “B” sample was slightly below. But, the NFL’s Drug Policy only requires enough to confirm the presence to the “limits of detection.” With the A sample being over the threshold, the discrepancy, in and of itself, is not grounds enough to reverse.
Where that information will come in, though, is in the second hand smoke argument. According to the ESPN article, the NFL’s thresholds are lower than other governing bodies, such as MLB and the Olympics. An expert will likely be brought in to say that the NFL standard allows for tests to register as positive based on second hand smoke. Then, they could point to the previous passed tests and the B sample to further bolster a second hand smoke argument. That at least gives Gordon a fighting chance.
Of course, there is the separate issue of the DWI in North Carolina this summer. That could result in its own suspension. That will be independent, though.
While it is not spelled out in the written terms of the policy, we also know that the NFL will settle to avoid litigation if there is a potentially valid argument, like with Brandon Browner. In that case, the parties could agree to a lesser suspension with the agreement to pursue no further legal action. It depends on how strongly Gordon and his team press the second hand smoke defense, and whether they seek an all-or-nothing resolution.