Eldon Ham - At the time the NFL was feeling their way along.  They were inventing the process on the fly.  The nuances had not been worked out.  When a player was notified of a positive test, the news would come through informal channels, usually through the team trainer.  The trainer would disseminate the information.  Nothing was in writing, there was plenty of miscommunication.  Around late August of 1988 Richard Dent had refused to take a random drug test, at that time a refusal to take the test was treated as a positive test.  Dent had allegedly tested positive for traces of marijuana more than a year before this.  The prior positive tests allowed the NFL to randomly test a player throughout the course of the year.  At that time on the first positive test a player was placed in a counseling program.  After this the testing continued for Dent.  Notices of test results were not in writing, so you did not know where you stood.  Dent was thinking, “when does it end?”.  On August 22, 1988 Dent was given notice by the team trainer of an unscheduled test the next day. Dent did not test positive, he refused to take the test.

EH - Dent received notice of suspension on a Wednesday, before a game with the Indianapolis Colts.  We were filing suit on a Thursday, after having prepared the materials Wednesday night and all day Thursday.  We were requesting a hearing on Friday, so that if possible Dent could play on Sunday against the Colts.  We filed an action in the Circuit Court of Cook County Illinois for injunctive relief and moved for a temporary restraining order and such other relief as the court deemed appropriate.

EH -The key to the case for us was “Private Sector -Due Process”, that is, rules regarding private associations.  There is an entire body of laws which deals with fundamental fairness as applied most notably by private associations, such as the NFL.  Fundamental fairness is the private sector equivalent of due process . The NFL by-laws and the NFL drug policy at that time were at odds with each other.

In the drug policy, the second positive test resulted in an automatic suspension.  The by-laws allowed for no suspension without a hearing.  The league’s drug policy ignored their own by-laws.  The NFL did not reconcile by-laws with the testing program.  Most courts require notice and hearing.  The NFL by-laws and other related documents also seem to require notice and hearing in any disciplinary, or even medical type action.  The crux of Dent’s case was that there was no notice and hearing with regard to his suspension, or with regard to his ability to cross-examine in some manner the nature of the first test which allegedly put him on the “reasonable cause” list.