Josh Gordon Highlights The NFL And America’s Drug Punishment Double Standard


Josh Gordon’s suspension story was already large enough before the NFL hit Baltimore Ravens running back Ray Rice with a two-game punishment last week. The Cleveland Browns receiver, perhaps the most electric wideout in football last year, will likely miss the entire 2014 season unless NFL commissioner Roger Goodell reduces the suspension during an appeal hearing that reportedly lasted more than 10 hours Friday and will stretch into Monday.

Gordon naturally became part of the Rice story, given the odd juxtaposition the two suspensions create: the guy who smoked weed, a drug that states and cities are rapidly decriminalizing if not legalizing outright, that a majority of Americans now think should be legal, and that even the NFL is having second thoughts about, is facing a punishment eight times as harsh as the guy who (allegedly) beat the hell out of his wife. That, as Tomas Rios laid bare in a column last week, shouldn’t necessarily shock us. The American justice system, particularly when it comes to African-American men, is far more concerned with those who use drugs than it is with those who beat or sexually assault women. The NFL, Rios assessed, is merely “a microcosm of the society that allows it to exist.”

But the sickening lessons that the contrast between Rice’s treatment and Gordon’s are only one part of the story of what is broken with the NFL’s disciplinary system. Just as the league may replicate society’s priorities regarding drugs and violence against women, it also mirrors the race and class divides of our criminal justice system when it comes to drugs alone. Even before Rice’s suspension came down, Gordon was already half of an equation that makes those failings clear. And the other half has a name, too: Jim Irsay, the owner of the Indianapolis Colts.

On its own, Gordon’s punishment looks too harsh by a significant degree. Gordon has failed drug tests before, first as a rookie and then before last season, landing himself in Stage III of the NFL’s drug program, a purgatory that he cannot leave now that he has entered. According to ProFootballTalk’s Mike Florio, Gordon took and passed no fewer than 70 drug tests during the 2013 season alone. He barely failed the one that finally ensnared him, and he might not have failed were it not for the strict nature or the oddities of the NFL’s system.


Pause now for the strictness of the NFL’s policy. The test requires players to urinate into two separate cups, one marked “A” and the other “B,” with the “B” cup only relevant if the “A” cup tests positive. A positive test in the NFL means that a urine sample contains more than 15 nanograms per milliliter (a nanogram is a billionth of a gram). That is 10 times as strict as the marijuana threshold for World Anti-Doping Agency, which covers Olympic athletes and sets the bar at 150 nanograms-per-mL. It is tougher than the military screening standard and equal to the level the military requires to confirm a positive test. Gordon’s “A” cup barely broke it, according to Florio’s sources, coming it at 16 ng-per-mL. His “B” cup registered below the threshold, which didn’t mater, because once the “A” cup tests positive the “B” cup only has to show traces. But, as Florio noted, if the “B” cup had been tested first, Gordon would have passed. Or, had the NFL used the WADA standard, the one it says it might move closer to as it reassesses its program…Gordon would have passed.

Assume those details are true and it’s easy for any skepticism about the NFL’s drug testing policies to become even stronger. There is no readily apparent reason that the league needs to test for marijuana at all — it is not performance enhancing — and it is even less clear why it needs standards more stringent than leading anti-doping organizations or the American military. Neither do we know why the NFL is hell-bent on punishing players for trace amounts of weed, why the NFL Players Association ever agreed to this, or why the league wants or needs to enforce such draconian punishments. 10 tests a month? 70 in a season? A full career in “Stage III”? A year-long suspension?

For weed? It barely makes any sense, if it makes any at all.

But this is the system we have, and it is the system under which we must evaluate Josh Gordon and his punishment in the immediate sense.

Which brings us back to Jim Irsay. The Colts owner was arrested outside Indianapolis in March for driving under the influence. Police reports obtained by the Indianapolis Star indicated that he was also in possession of “numerous” prescription pill bottles and more than $29,000 in cash in a metal briefcase and laundry bags. Irsay could not provide proof of prescription for the drugs, which police described as “various color and kinds of pills.” Prosecutors later said Irsay had oxycodone and hydrocodone in his system when he was arrested. The state suspended his license for one year. Irsay went to rehab and agreed to random drug testing. He’ll go to trial in August, facing two misdemeanor charges for driving under the influence and the drugs in his possession.

Irsay’s suspension?

We don’t know.

That’s where the double standard begins. Irsay’s sanction, if there is one, will fall under the league’s personal conduct policy. That policy, under which Goodell determines the breadth of punishments, doesn’t cover Gordon’s failed test, thanks to the drug agreement the league bargained with the NFL Players Association. Owners and executives like Irsay, of course, are not subject to that policy.


Goodell has said repeatedly that owners and executives must adhere to the conduct policy, and he has wielded it against front office employees in the past. He has indicated, and it is expected, that there is a punishment coming for Irsay. But it is hard to tell why Goodell is so mum on the Colts’ owner months after his arrest. Perhaps he is waiting for Irsay to appear in court, but Goodell has gone forth without such patience in the past. In 2010, he suspended Ben Roethlisberger for six games (later reduced to four) despite the lack of charges in his sexual assault case. Whatever Goodell’s eventual verdict is, it is safe to bet it won’t amount to a full season of games, much less a full season of the profits Irsay’s team generates (and, given that one problem with Gordon’s punishment is that it is far too strict for the “crime,” perhaps it shouldn’t).

So it is likely now that Josh Gordon — a black player — will face a punishment far more strict than Irsay’s for a crime less problematic than the one committed by the white owner standing, figuratively, right across from him.

If this were merely a football issue, that would be a problem but wouldn’t be the world’s biggest deal. Gordon, after all, is no saint — he was arrested on charges of driving while intoxicated earlier this month — and his race isn’t necessarily the defining factor as much as his place in the NFL hierarchy (that’s not to say race isn’t an issue, because the league’s players are majority black, but a white player could be standing in his shoes too).

But it is not just a football issue, and his race is important, because this disparity in the NFL’s treatment of Gordon and Irsay is reflective of the way America hands down drug punishments in general.

Studies of adult drug use show no evidence to suggest that African Americans use recreational drugs at higher rates than whites; when it comes to marijuana, some studies suggest that they are less likely to report trying it than whites. But there is plenty of evidence that African Americans are arrested for possessing and using drugs far more often than whites. According to a 2009 report from Human Rights Watch, in fact, “adult African Americans were arrested on drug charges at rates that were 2.8 to 5.5 times as high as those of white adults in every year from 1980 through 2007” even though “they engage in drug offenses at comparable rates.” Though it is not perfectly analogous because Irsay was caught with drugs other than marijuana, the American Civil Liberties Union has recorded similar disparities when it comes to weed specifically: in every American state, blacks are arrested for marijuana possession more often than whites at rates ranging from 1.6 times (Alaska) to 8.34 times (Iowa). That gap is not new:

CREDIT: American Civil Liberties Union
CREDIT: American Civil Liberties Union

It isn’t just the NFL that hands out harsher, more common punishments to people like Josh Gordon while allowing those like Irsay to walk. That’s how America does it too.


That the NFL might not be as bad or worse than American society when it comes to punishing drug users should not give Goodell license to shut the door on Gordon while he goes easy on Irsay. That double standard is important even in football alone, and it is something the union — which agreed to these stringent policies in the first place — and the league should address in the future.

But it should put the situation into a larger context. The NFL has generally followed America on drugs, and it is no different here. The league is merely doling out drug punishments the way America has taught it how to. The NFL should do better. So should we.