It all depends on how the policy is worded and if the Union agrees to it. Part of the negotiation is to have applied to all players suspended this year for testing positive prior to the season. The policy is not being unilaterally imposed but is being through negotiations with the players union. From the article linked within the cited article:
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On Wednesday night, PFT reported (and several others thereafter did, too) that the NFL and NFLPA had made considerable progress toward crafting comprehensive new drug policies, including hGH testing. One source told PFT that a deal was “very close.”
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While I am not 100% certain b/c I don't do much employment law, pretty sure if the NFLPA agrees to it, the NFL is protected from litigation by the players (past or present).