The planned defense of linebacker Vontaze Burfict to an alleged PED violation, as leaked to and explained by Adam Schefter of ESPN, doesn’t hold water. We’ve since tracked down some more details about the apparent effort to avoid the suspension (and to prevent the voiding of all remaining guarantees in Burfict’s deal). While he still has serious problems with his case, there’s at least a little possible merit to his position, even if it was previously not leaked and/or not fully explained by the recipient of the leak.
However, it’s likely not enough to beat the suspension.
Burfict, as multiple league sources have explained it, apparently hopes to take advantage of the rule that shifts certain banned substances from the PED policy to the substance-abuse policy in the offseason. Generally, the exception encompasses a broad range of stimulants; specially, the issue typically involves Adderall.
The exception is codified at page 10, footnote 5, of the PED policy: “If a test administered to a Player outside of the Playing Season generates a positive result for a stimulant listed on Appendix A, the Player will not be subject to discipline under this Policy, but will instead be treated as a behavioral referral to the Policy and Program on Substances of Abuse. The Playing Season shall be defined as the period beginning with the Player’s first preseason game of the season and ending the week following his final regular or postseason game. For free agents, the Playing Season shall run from the League’s first preseason game and end upon the conclusion of the Super Bowl.”
This is hardly a silver bullet for Burfict (assuming he tested positive for a stimulant like Adderall), since he reportedly took two different prescription medications, one for a concussion and one for a shoulder injury. Stimulants like Adderall typically aren’t used in the treatment of a shoulder injury.
Then there’s the question of whether the positive test for a stimulant like Adderall falls beyond the playing season. Although Burfict ultimately didn’t play in Week 17, he tested positive during the week preceding the game and, more importantly, during the week after the last game he played, in Week 16. As defined in the policy, “The Playing Season shall be defined as the period beginning with the Player’s first preseason game of the season and ending the week following his final regular or post-season game.” (Emphasis added.)
So even if he didn’t play in Week 17, his Playing Season as defined by the policy extended one week beyond the last game he played, on the Sunday of Week 16, against the Lions.
As to Burfict’s apparent intent to rely on the fact that he was prescribed certain medications, the PED policy contains a very clear Therapeutic Use Exemption. To obtain a pass for using banned substances at the direction of a doctor, all i’s must be dotted and t’s must be crossed. And, most importantly, the approval from the league must come before the player tests positive. No mention of a Therapeutic Use Exemption was made by Schefter, which strongly implies that no mention of a Therapeutic Use Exemption was made to him.
The bottom line for Burfict is that he still will have a very tough time beating the suspension, based on the facts as leaked by his camp and the circumstances as interpreted by others who know the policies and procedures. But hopefully now there’s a better understanding of what Burfict will be claiming, how it relates to the PED policy, and the challenges he’ll face in putting forth this defense.