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What, Exactly, Is Going On With The Randy Gregory Suspension?

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On Sunday, Dallas Cowboy fans were treated to a roller coaster of raised expectations and dashed hopes. How did this happen and what is really going on? Caveat: I am not a lawyer...

Jerome Miron-USA TODAY Sports

It was the best of times, then it was the worst of times (with apologies to Charles Dickens).

Suddenly, it seemed that Dallas was getting good news, for once, and that Randy Gregory would be back with the team after four games. Shortly thereafter, it was clarified that no ruling had been made on the subsequent violation. Unfortunately, by then, multiple sources, including NFL.com and NFL network reporters, had run with the story. It was a tremendous fiasco which left egg on a lot of faces. How did it happen and what is the actual situation?

I think there's a very big clue in the wording of this Bryan Broaddus tweet from early Sunday:

This indicates that there was a formal announcement by the NFL of a four-game suspension on Sunday. With the rumor of ten games looming, this seemed like a reprieve. When the NFL sources confirmed that the suspension was four games long, all seemed well. But this is a misunderstanding of the NFL's confidentiality agreement with the NFLPA. Specifically, the league can only officially disclose suspensions that  are enacted.

The Management Council may publicly announce or acknowledge disciplinary action against a Player when a  suspension is upheld or if the allegations relating to a Player’s violation of the Program previously are made public through a source other than the Management Council or a Club (or their respective employees or agents).

In other words, NFL personnel can only speak towards a suspension that has already been upheld. So the four-game suspensions announcement was not a reflection of a decision by the NFL on the latest violation (reportedly a missed test because of Gregory's inpatient rehab), but rather a formal announcement of the suspension which was first reported earlier in the year. The reported ten-game suspension for a further alleged violation will not be confirmed by the NFL until the appeal process is completed. I think this policy is part of the problem. The league should formally announce that players have been charged with a violation and that the appeals process is ongoing. Allowing people to speculate about players situations does more harm than good to player privacy and reputation, both, in my opinion. Of course, I am not a lawyer, but the current situation seems bad for the player, to me.

But what is actually happening and why is Gregory where he is?

Gregory had a positive test at the Combine. That means he entered the NFL in drug treatment program stage one. According to the NFLPA policy (linked here for reference), stage one involves a medical treatment plan and testing at the determination of the medical director. Stage one last 90 days but may be extended to 180 days by the medical director, under consultation with the medical adviser. During stage one, the medical director has sole authority to determine what is a failure to comply and assess a three-week fine. Because Gregory entered due to a positive test, he immediately moves into stage two at the completion of stage one.

Stage two personnel are subject to unannounced testing not to exceed ten times a month. To put that in perspective, that's as a much as every three days, with no warning. If it was one of these tests that Gregory (reportedly) missed to earn the  extended suspension by entering rehab, one would hope there will be leniency as it seems unlikely that he would've had much notice of the test. Also this test is for any substance of abuse, including alcohol if the medical director so chooses. A player's first violation while on stage two results in a four week fine if the player had successfully completed stage 1, and a four-game suspension without pay if not. It's unclear whether Gregory received a fine or if his four-game suspension was his first test violation during stage two. This is an important point, as it is unclear whether Gregory's automatic inclusion in stage two indicates a similarly automatic failure to complete stage one successfully.

This is because the second violation under stage two is a four-game suspension if he was previously fined, but a six-game suspension if he was previously suspended under stage two. With all the misunderstandings surrounding Gregory's situation, I am not at all certain whether his "ten-game suspension" is actually a result of a stage three violation and not a result of two stage two violations. In fact I am pretty sure that no one knows. Here's why:

Under the policy there is only one ten-game suspension listed: for a positive marijuana test while on stage three. If he was in stage three and missed a test (by definition, NOT a positive test for marijuana) he should be facing a minimum one-year banishment with allowed reinstatement after criteria are met. Furthermore, the policy states that if the first violation in stage two is a positive marijuana test, then the punishment is a two week fine, with subsequent stage two violations causing a four week fine,then a four-game suspension and advancement to stage three.

The narrative that has grown up around Randy Gregory is that "he just can't lay off the ganja" and has failed two tests for marijuana since the combine and then, according to David Moore of the Dallas Morning News, missed a third while in rehab causing the ten game trigger. This cannot possibly be the case as the NFLPA policy does not allow for a ten game suspension for anything other than a positive marijuana test.

Here are the possibilities:

He successfully completed stage one, tested positive for marijuana, received a two-week fine, subsequently tested positive or missed a test to receive a four-game fine and then again for the four-game suspension, and then missed the reported test. In this case he is looking at banishment.

He was considered unsuccessful in stage one for any of a variety of reasons, missed or failed a test to receive the four-game suspension, and then missed the reported test. In this case he is looking at an additional six games added to his four, which might be where the "ten game" idea is from. Indeed, Moore's piece from July reads as if this is the case, as he specifically discusses the possibility of adding six games to the four which were just confirmed.

He successfully completed stage one, was fined for either a pair of positive marijuana tests, a test for something other than marijuana, or a missed test, was suspended four games for a subsequent missed or positive test, and then tested positive for marijuana one more time. This is the ONLY possible case where he is looking at an actual ten-game suspension in addition to the four game suspension.

It's worth noting there is NO provision for a ten-game suspension for a missed test. Either the report that his latest error is a missed test or the report that he is facing a ten-game suspension must be wrong. Moore intimates that this is a matter of NFL discretion, but that is not the case. From the NFLPA policy:

(c) Ten-Game Suspension for Marijuana
If a Player’s first Positive Test Result after being advanced to Stage Three is for marijuana, the Player shall be suspended without pay for ten (10) regular season  and/or  postseason games (including the Pro  Bowl, if selected). For any subsequent violation (i.e., failure to comply with Treatment Plan; failure to cooperate with testing, treatment, evaluation or other requirements imposed by this Policy; or a Positive Test Result for any substance), the Player shall be banished as set forth in Paragraph(b) above.

This is literally the only reference to a ten-game suspension in the entire policy apart from a legal conviction. But the stage two rules do show a "four plus six" scenario:

Second Violation:
A Player who has a second violation in Stage Two will be subject to:
1.A  suspension without pay of four (4) regular and/or postseason games  (including  the  Pro  Bowl,  if  selected)  if he was previously fined for Stage Two noncompliance;

or

2.A  suspension without  pay of six (6) regular  and/or postseason games  (including  the  Pro  Bowl,  if  selected)  if he was previously suspended [four games] for Stage Two noncompliance;

and

3.Advancement to Stage Three

It appears likely that this is actually where Randy Gregory is: a second suspension for noncompliance with stage two adding six games to his existing four game suspension. This additional six games is presumably what is under appeal and also presumably the result of the reported missed test during rehab.

Thanks to the clumsy attempts to protect player confidentiality, we may never know what actually happened. The NFL will not comment officially on drug testing except to say that a suspension has been imposed, after appeal. So what we *know* is that Gregory is serving a four-game suspension. What seems likely is that he missed a test immediately after entering rehab, could receive six more games because of it, and that that situation is under appeal/review by the league. Meanwhile, Gregory is cleared to report on October 3rd.

For now.

Disclosure and caveat: I am not a lawyer. This is strictly my interpretation of the NFLPA drug policy as published.