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Gordon, NFLPA could seek investigation regarding confidentiality breach

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On multiple occasions over the last 24 hours, someone has violated the confidentiality provisions of the substance abuse policy in relation to Browns receiver Josh Gordon.

The first came when someone leaked to FOX Sports, the Associated Press, and NFL Media that Gordon had failed a drug test last month. The second came when someone leaked to Adam Schefter of ESPN that the NFL wants to see Gordon stay clean over the next two or three months before reinstating him.

It’s clear that a violation of the broad confidentiality requirement occurred. Consider Section 1.2.1 of the substance abuse policy: “The Medical Advisor, Medical Director, Program Administrator, Team Substance Abuse Physician, Chief Forensic Toxicologist and all employees and consultants of the NFL, NFL Management Council, NFLPA (including its employees, members and Certified Contract Advisors), Evaluating Clinicians, Treating Clinicians and NFL Clubs (‘Interested Parties’) shall take all reasonable steps to protect the confidentiality of information acquired in accordance with the provisions of this Policy, including but not limited to the history, diagnosis, treatment, prognosis, test results, or the fact of participation in the Intervention Program of any Player or the Club(s) employing or having employed the Player (‘Intervention Program Information’).”

Even if the information leaked about Gordon is accurate, the policy prevents dissemination before the official announcement of disciplinary action. Considering the pair of confidentiality breaches in this case, it can be inferred that someone wanted to provide an explanation for the ongoing failure of the league to reinstate Gordon. Absent official disciplinary action, the situation would have lingered without explanation (and with ongoing criticism of the league), possibly for two or three more months.

Still, absent authorization from the player, the confidentiality provision was violated. And the policy calls for fines and/or termination of employment when that occurs.

The real question is whether anything will be done about the fairly obvious breaches of Gordon’s confidentiality rights. Per a league source, discussions between Gordon and the NFL Players Association regarding potential recourse have commenced. Section 1.2.3 of the policy provides that the NFL and NFLPA may agree to retain an independent investigator to explore the situation.

Arguably, the league itself committed a per se violation of the confidentiality provision via the report of the failed test from the league’s in-house media conglomerate. Since NFL Media is the NFL, anything reported by NFL Media is reported by the NFL. And the NFL, in theory, has the ability to request that its employees identify the sources of the information that resulted in the breach.

Before it ever comes to that, the NFL and NFLPA would have to agree to do something about it. At this point, there’s no reason to think that the confidentiality provision will be treated any differently than it ever has been -- as words on paper that potentially have some sort of deterrent effect but that ultimately have no teeth because the rule is rarely if ever enforced.