The Cleveland Browns are holding out hope that All-Pro wide receiver Josh Gordon will play this year. After failing another drug test, Gordon may avoid a season-long suspension due to a technicality in the test sample that led to him testing positive for a banned substance.
Gordon hired attorney Maurice Suh, who helped Seattle Seahawks cornerback Richard Sherman win his appeal of a contested positive test in 2012. Gordon is hoping Suh can help him avoid a suspension in the same way Sherman avoided his for what was believed to be a failed test for Adderall use.
Pro Football Talk's Mike Florio reports that Gordon's positive test could technically be considered a 'pass' if the test bottles had simply been labeled differently.
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.
But because the "A" bottle was labeled "A" and not "B" and because the "B" bottle was labeled "B" and not "A", the end result is a positive and a minimum one-year banishment from the NFL. Flip the bottles when it's time to apply the labels, and Gordon isn't facing a suspension.
In theory, Gordon and his attorney are going to try and argue that he should not have failed that test, because it shouldn't matter whether a cup is labeled 'A' or 'B', which ultimately is what decided that he failed the test.
Gordon's legal team will argue that the positive tests are so marginal that they show uncertainty as to whether the test results were even truly positive, and even if so, were the result of exposure to second-hand smoke, according to sources familiar with the case.
He was suspended two games last season, though he still went on to lead the NFL with 1,646 receiving yards.
Florio also reported that Gordon is now in Stage III of the NFL's drug testing program as part of a negotiated two-game suspension he got last year for the use of cough syrup that contained codeine. Gordon has also reportedly passed at least 70 drug tests, but the one fail is what may cost him.
That is, unless he and his attorney can get the NFL to reverse it's ruling in the appeal hearing. The NFL will have to take into account his past transgressions, including a DWI arrest earlier this month.