Josh Gordon is set to appeal his failed drug test on Friday. He is reportedly planning to use the second-hand smoke defense, which is one we have heard from players in the past but rarely holds up during the appeals process. But as Mike Florio of Pro Football Talk outlined on Tuesday, Gordon might actually have a shot.
After he tested positive for the use of codeine syrup and was suspended for the first two games of the 2013 season, Gordon was placed in the NFL’s Stage III drug program. That means he has to pass 10 drug tests per month, and Florio reports that he has passed around 70 of them. And the one time Gordon did test positive, half of his urine tested negative. Florio breaks it down:
Urine samples routinely are split into two bottles, the “A” bottle and the “B” bottle. If the “A” bottle generates a positive result, the “B” bottle is tested. Amazingly, the “B” bottle doesn’t have to independently show a violation. Instead, the substance abuse 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.”
In English, close counts in horseshoes, hand grenades, and “B” bottles.
For Gordon, the “A” bottle showed a concentration of 16 ng/ml, only one nanogram per milliliter above the limits of 15. The “B” bottle showed a concentration of 13.6 ng/ml — less than the threshold.
In other words, Gordon may have failed his test simply because of the way the sample cups were labeled. Had the arbitrary “A” and “B” labels been swapped, the first urine sample tested would have been negative and he would have passed. Regardless of the way Gordon’s case turns out, that seems like a pretty significant flaw in the NFL’s testing system.
Independent of the A/B dilemma is the fact that one of Gordon’s samples tested just one nanogram per milliliter above the legal limit of 15, whereas the second sample tested 1.4 nanograms per milliliter below. While limits are limits for a reason, does Gordon have a case with the second-hand smoke argument because of how close he was to passing?
For what it’s worth, Gordon recently hired Maurice Suh — the attorney who helped Richard Sherman convince the NFL to nix his four-game suspension after he tested positive in 2012. Gordon is still facing a one-year suspension if he loses his appeal, but I wouldn’t be cutting him from my fantasy keeper league just yet.