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Technicality in Browns WR Josh Gordon's failed drug test could aid appeal, according to reports

By Nate Ulrich Published: July 29, 2014

A technicality in Browns All-Pro wide receiver Josh Gordon's reported failed drug test might help his case as he appeals a potential suspension, according to reports published Tuesday by ProFootballTalk.com and ESPN.

Gordon has an appeal hearing scheduled for Friday in New York. He is facing a potential ban from the NFL of at least a year because he tested positive for marijuana in the offseason and is a repeat offender of the league's substance-abuse policy, ESPN reported.

Gordon's attorneys plan to introduce witnesses who will testify Gordon's test results indicate he was the victim of breathing in second-hand marijuana smoke, ESPN's Adam Schefter reported. The league has maintained it does not intend to suspend players for second-hand smoke.

Gordon's test results were barely above the threshold set by the NFL, PFT reported.

As explained by Mike Florio of PFT, urine samples are typically divided into an "A" bottle and a "B" bottle, and if the "A" bottle yields a positive test for a banned substance, the "B" bottle is tested. Per rules of the league's substance-abuse policy, the "B" bottle doesn't need to show a violation, only that the substance found in the other bottle is evident to the "limits of detection."

Gordon's test showed a concentration of 16 nanograms per milliliter in the "A" bottle, one ng/ml more than the limit of 15, according to PFT, and the "B" bottle showed a concentration of 13.6 ng/ml, or 1.4 ng/ml less than the threshold.

If the "B" bottle had been labeled the "A" bottle instead of the other way around, Gordon wouldn't be facing a suspension, according to PFT. The bottles are randomly designated "A" and "B."

Both samples came from the same specimen test but produced different results, according to the reports. That could be another point of contention in the appeal.

Studies have shown second-hand smoke exposure can result in test results similar to those of Gordon, according to ESPN. Gordon's test results would have been considered negative for marijuana by other professional sports testing regimes, including the Olympic standard and Major League Baseball.

Gordon, 23, was arrested July 5 in North Carolina and charged with driving while impaired. According to ESPN, the DWI charge cannot and will not be factored into any discipline Gordon receives for reportedly testing positive for marijuana.

Gordon has hired attorney Maurice Suh, who helped Seattle Seahawks cornerback Richard Sherman win his appeal of a contested positive test in 2012, ESPN reported. Suh will work with NFL Players Association attorney Heather McPhee in an attempt to have Gordon's suspension reduced.

Last year, Gordon confirmed he's in stage three of the substance-abuse program and would face a one-year banishment if he violated the policy again. He served a two-game suspension last season for a violation he blamed on prescription cough medicine that contained codeine, a substance banned by the NFL.

A player in stage three must pass as many as 10 drug tests a month. Gordon has passed at least 70 drug tests, PFT reported, but the one in question is all that really matters when it comes to his availability, or lack thereof, for the Browns in 2014.

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