By Christopher R. Deubert, Senior Writer
Linebacker Randy Gregory’s career includes a big “what if?” In seven seasons between 2015 and 2023, he showed occasional signs of brilliance as a pass rusher. But he also missed two plus seasons due to violations of the league’s drug policy arising out of habitual marijuana use. In 2023, the NFL denied Gregory’s request to take Dronabinol, a synthetic form of THC, for treatment of social anxiety disorder and post-traumatic stress disorder.
Gregory sued, alleging violations of the Colorado Anti-Discrimination Act. The NFL, as is its wont, removed the case to federal court and argued that the claims should be dismissed because they are preempted by the NFL-NFLPA collective bargaining agreement. In a June 26, 2026 opinion, a Colorado federal court disagreed and remanded the action back to state court.
What could have been
In 2013 and 2014, Gregory excelled at the University of Nebraska, racking up 17.5 sacks in 24 games. He chose to leave school early because he was projected as a high first round Draft pick. However, after testing positive for marijuana at the pre-Draft Combine, Gregory slid to 60th overall.
After playing 12 games in his 2015 rookie season, he was suspended 14 games in 2016 and the entirety of 2017 for violating the league’s Policy and Program on Substances of Abuse. That is hard to do. While the NFL’s Policy on Performance Enhancing Substances includes suspensions for first-time violations, the Substance Abuse Policy only imposes discipline if a player fails to comply with his treatment program and repeatedly tests positive. For the Substance Abuse Policy in affect at the time of Gregory’s suspension, he likely would have needed five or more failed marijuana tests for that level of discipline. (Although Gregory has admitted also using cocaine and ecstasy, he has said that all of his suspensions were related to marijuana.)
Gregory returned to play 14 games in 2018 before being suspended again for all of 2019. Between 2020 and 2023, he managed to stay on the field and show signs of fulfilling his potential. After a six-sack season with Dallas in 2021, he signed a five-year, $70 million contract with the Denver Broncos. After disappointing play, Denver traded Gregory to the San Francisco 49ers, for whom he played the last 12 games of his career in 2023.
TUE accommodate or not?
Gregory alleges that in 2021 he was diagnosed with social anxiety disorder, which “causes him to experience fear of social events or events with large amounts of people, discussions with the media, being judged negatively, embarrassing himself in public, and meeting or talking with unfamiliar people.” In February 2023, a doctor prescribed Gregory with Dronabinol to treat his social anxiety, chronic pain, and newly diagnosed post-traumatic stress disorder.
In March 2023, Gregory submitted his prescription and related documentation to the NFL seeking to excuse recent positive THC test results. The NFL allegedly rejected Gregory’s explanation.
Gregory, with the assistance of the NFLPA, then submitted a therapeutic use exemption (TUE) request to the NFL to permit him to continue using Dronabinol, even though it violated the Substance Abuse Policy. The NFL denied Gregory’s request.
From the field to the court
In June 2024, Gregory initiated an action in a Colorado state court against the NFL and the Broncos alleging that the denial of his TUE request was a violation of provisions of the Colorado Anti-Discrimination Act (CADA) prohibiting discrimination on the basis of a disability. On this issue, CADA, like many state statutes, generally follows the framework of the Americans with Disabilities Act in which employers have a duty to engage in a good faith interactive process with employees about reasonable accommodations requested by the employee to assist the employee in performing their essential job functions. Gregory claimed that the NFL and Broncos had failed to properly consider and engage with him concerning his use of Dronabinol.
A labor agreement end around?
The NFL’s Substance Abuse Policy is collectively bargained with the NFLPA. That agreement is separate and apart from the much lengthier collective bargaining agreement (CBA) that the league and union have negotiated covering numerous issues related to the terms and conditions of NFL player employment, such as salaries, salary caps, free agency, benefits, work schedules, and more.
That lengthier agreement also requires that should there be a dispute as to whether the league, a club, a union, or a player abided by their obligations under the CBA, such dispute be settled through a confidential arbitration process. As a result, in each sports league, dozens of grievances are commenced and resolved each year, typically without any public awareness.
Nonetheless, players occasionally bring lawsuits against a league or club in state or federal courts for conduct which they have argued is not covered by the CBA. The defendants then invariably seek to have the case dismissed, arguing that the claims are preempted (i.e., barred) by the CBA, pursuant to the federal Labor Management Relations Act (LMRA).
In the 1985 case of Allis-Chalmers Corp. v. Lueck, the Supreme Court established the controlling principal on this issue, holding that claims whose resolution are “substantially dependent upon analysis of the terms of” a CBA are preempted. In other words, claims that are “inextricably intertwined” with the terms and provisions of the CBA cannot proceed. Instead, such claims must be brought pursuant to the arbitration provisions contained in the CBA. The intended and frequent result is the dismissal of the claims.
Preemption in practice
Some cases have caused sports leagues preemption trouble. In particular, players injured as a result of field conditions have often survived preemption arguments.
The other type of claim players have successfully made is one where they rely on state statutory (i.e., not common) law. In Williams v. NFL, the United States Court of Appeals for the Eighth Circuit held that common law claims by Minnesota Vikings players Kevin Williams and Pat Williams against the NFL concerning a failed test under the NFL’s then-Steroid Policy were preempted. However, non-common law claims brought pursuant to Minnesota state statutes – including a Minnesota drug testing statute – were not. (Disclosure: I was part of the Williams’ legal team in later litigation.)
The most important outcome of the Williams case (or StarCaps case as it is commonly known) was that leagues and teams must comply with each individual state’s laws, regardless of what might be in the CBA or a player’s particular contract. The NFL argued that “subjecting the [Steroid] Policy to divergent state regulations would render the uniform enforcement of its drug testing policy, on which it relies as a national organization for the integrity of its business, nearly impossible.” The Eighth Circuit rejected this argument, explaining that deference to collective bargaining does not “grant the parties to a CBA the ability to contract for what is illegal under state law.” The Supreme Court rejected the NFL’s petition for certiorari on this point.
Gregory prevails
In July 2024, the NFL removed the action to federal court arguing that Gregory’s claims were preempted by the LMRA because a court would have to interpret various provisions of the Substance Abuse Policy and the CBA to reach a determination on their legal merit. In particular, the NFL argued that to evaluate whether Gregory was qualified for his job (a prerequisite for a claim under CADA), a court would need to review certain provisions of the policy and Gregory’s contract.
In its June 26, 2026 opinion, the United States District Court for the District of Colorado denied the NFL’s motion to dismiss. The Court chided the NFL for failing to “explain why these various provisions are necessary to determine whether an individual is qualified to play football” and held that the league had not met its burden to show “whether Mr. Gregory is qualified for his job is inextricably intertwined with the CBA.”
The NFL also argued that the Court would have to interpret the Substance Abuse Policy – particularly the provisions concerning TUEs – to evaluate whether Gregory’s requested accommodation was reasonable. The Court again found the NFL’s arguments to be “woefully underdeveloped.” On this issue, the Court clarified that “[t]he question is not whether the accommodation was reasonable under the CBA; it is instead whether it was reasonable under CADA because CADA is the source of the obligation.”
The Court thus remanded the action back to Colorado state court for resolution.
The ultimate merits of Gregory’s claims remain uncertain. But what is increasingly certain is that if a player can find a statutory basis on which to bring a claim against a league or team, they stand a good chance of defeating a motion to dismiss on preemption grounds.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
