Time for the NFLPA to Address the NFL Zero-Tolerance Drug Policy

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The NFL and NFLPA are negotiating the future of the league’s Collective Bargaining Agreement. Initial reports described the parties’ meetings as “productive,” leading some to believe than an agreement could be reached sooner than expected. But the NFLPA’s release of a “Work Stoppage Guide” suggests a different message:

It’s clear a number of issues remain. However, how the NFL wields its discretionary power is one topic that cannot be ignored.

The NFL’s “Zero Tolerance” Policy

The NFL suspended New York Giants’ wide receiver Golden Tate for the first four games of the 2019 NFL Season for taking a banned substance. Tate’s appeal was denied due to the NFL’s zero-tolerance policy. The NFL refuses to take into account how a substance is ingested, or other mitigating factors that could play a role in a player receiving a positive test. The NFL Policy on Performance Enhancing Substances states:

If there are no deviations in the collection process or testing, a player has no chance of success on appeal. As a result, despite the fact the substance’s presence was the result of treatment relating to fertility planning, Tate’s appeal was doomed from the outset. In the case of Dallas Cowboys defensive end Robert Quinn, the NFL admitted that it did believe he intentionally took a banned substance; nonetheless, the league suspended him for two games.

Accidental ingestion is a futile defense, but the one most cited in appeal. Tennessee Titans’ left tackle Taylor Lewan is currently appealing a four-game suspension for testing positive for a banned substance and took a polygraph test to show he didn’t knowingly take the substance. But, like Tate, Lewan’s appeal will prove nothing other than the fact the NFL’s standard for punishment must be addressed.

The NFLPA Must Demand Change

The NFL Policy on Performance Enhancing Substances is based upon a mutual agreement reached between the NFL and NFLPA. The only way to effect change is by mandating that it be addressed during discussions surrounding the CBA. The NFL’s decision to reinstate Josh Gordon shows that the NFL can be forgiving in punishment. Furthermore, the NFL’s Personal Conduct Policy requires a factual investigation addressing the totality of circumstances before a decision is made.

Players could seek legal action to recoup salary lost due to suspensions resulting from factors outside their control. UFC’s Yoel Romero received an award of $27 million and vindicated himself of wrongdoing stemming from a failed drug test that ended up being the result of a tainted supplement. But in an NFL player’s case, a lawsuit would not solve the underlying issue.

With the NFL moving towards sports betting, the league must protect the integrity of its game. However, that shouldn’t come at the detriment of the players. Additionally, with other sports leagues adopting CBD as a tool for pain relief, the league is likely to lessen its stance on the drug in the near future. But the NFLPA can’t stop there in its efforts to seek reform and a fair decision-making process from the league.

Follow Alan Wilmot on Twitter and Instagram @alanwilmotlaw