Employment & Labor Insider

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 more than two seasons due to violations of the league’s drug policy arising out of habitual marijuana use.

In 2023, while Mr. Gregory was with the Denver Broncos, the National Football League denied his request to take Dronabinol, a synthetic form of THC, for treatment of social anxiety disorder and post-traumatic stress disorder. 

As described in more detail below, Mr. Gregory sued the NFL and the Broncos in state court in Colorado, alleging violations of the state’s 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 collective bargaining agreement between the NFL and the NFL Players Association. 

In an opinion issued on June 26, the federal court disagreed and sent Mr. Gregory’s lawsuit back to state court.

“TUE” accommodate or not?

Mr. 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 Dronabinol to treat Mr. Gregory’s social anxiety, chronic pain, and newly diagnosed post-traumatic stress disorder.

In March 2023, Mr. Gregory submitted his prescription and related documentation to the NFL, seeking to excuse recent positive THC test results. The NFL allegedly rejected Mr. Gregory’s explanation.

Mr. Gregory, with the assistance of the Players Association, then submitted a therapeutic use exemption (known as a “TUE”) request to the NFL to permit him to continue using Dronabinol, even though it violated the Substance Abuse Policy. The NFL denied the request.

From the field to the court

In June 2024, Mr. Gregory filed suit against the NFL and the Broncos, alleging that the denial of his TUE request violated the Colorado Anti-Discrimination Act, which among other things prohibits discrimination on the basis of disability. The Colorado law, like many state statutes, generally follows the federal Americans with Disabilities Act, which requires employers to engage in a good-faith “interactive process” with employees who have reasonable accommodation requests. Mr. Gregory alleged that the NFL and the Broncos 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 Players Association. That agreement is separate from the much lengthier collective bargaining agreement that covers issues related to the terms and conditions of NFL player employment, such as salaries, salary caps, free agency, benefits, and work schedules.

That lengthier agreement also requires that if there is a dispute as to whether the league, a club, a union, or a player complied with the agreement, the dispute must be settled through a confidential arbitration process. As a result, in each sports league, dozens of grievances are filed and resolved each year, typically without any public awareness.

Nonetheless, players occasionally try to take the league or a club to court for conduct which they argue is not covered by the agreement. The defendants then seek to have the lawsuit dismissed, arguing that the claims are preempted (i.e., barred) by the agreement, pursuant to the federal Labor Management Relations Act.  

In the 1985 case of Allis-Chalmers Corp. v. Lueck, the Supreme Court held that claims whose resolution is “substantially dependent upon analysis of the terms of” a collective bargaining agreement are preempted. Instead, those claims must be arbitrated, as provided in the agreement. The intended and frequent result is dismissal of the player lawsuits.

Preemption in practice

The leagues do not always prevail on their preemption arguments. In particular, lawsuits from players suing over injuries incurred as a result of field conditions have often survived. 

Players have also prevailed in court when they rely on state statutes, as opposed to common law. In Williams v. NFL, the U.S. Court of Appeals for the Eighth Circuit held that common law claims by Minnesota Vikings players Kevin Williams and Pat Williams against the NFL about a failed test under the NFL’s then-Steroid Policy were preempted. However, claims brought under Minnesota state statutes – including a Minnesota drug testing statute – were not preempted.  (Disclosure: I was part of the players’ 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 applicable state laws, regardless of what might be in the collective bargaining agreement or a player’s 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 . . . the ability to contract for what is illegal under state law.” The U.S. Supreme Court declined to review the decision.

Back to Randy Gregory

In July 2024, the NFL removed Randy Gregory’s lawsuit to federal court, arguing that the claims were preempted because a court would have to interpret various provisions of the Substance Abuse Policy and the more comprehensive agreement to reach a determination. In particular, the NFL argued that to evaluate whether Mr. Gregory was “qualified” for his job (as required for a disability discrimination claim), a court would have to review certain provisions of these documents. 

But in its June 2026 opinion, the federal 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 shown that making such a determination was “inextricably intertwined with the [agreement].”

The NFL also unsuccessfully argued that the court would have to interpret the Substance Abuse Policy – particularly the provisions concerning TUEs – to evaluate whether Mr. Gregory’s requested accommodation was reasonable. Finding the NFL’s arguments to be “woefully underdeveloped,” the court clarified that “[t]he question is not whether the accommodation was reasonable under the [agreement]; it is instead whether it was reasonable under [the Colorado statute] because [the statute] is the source of the obligation.”

The federal court then sent the lawsuit back to state court for resolution.

The ultimate outcome of Mr. Gregory’s lawsuit remains uncertain. But it is increasingly certain that if a player can find a statutory basis on which to bring a claim against a league or team, he stands a good chance of defeating a motion to dismiss on preemption grounds.