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Josh Gordon's legal options in the wake of NFL's one-year suspension

Josh Gordon could soon petition an Ohio court to intercept the NFL’s one-year suspension of the Cleveland Browns’ Pro Bowl wide receiver. Gordon, suspended for a repeat violation of the league’s collectively bargained substance-abuse policy, is poised to argue that the NFL violated Ohio law in suspending him. He could demand an injunction from a judge that would postpone his suspension until a trial. Such a trial would likely not occur until well after the 2014 NFL season, meaning Gordon would be able to play all season. That would be a welcome development not only for Gordon -- who’s set to lose $825,000 in salary during the suspension -- but for the Browns, their fans and the legions of fantasy football players who have rolled the dice and drafted Gordon.

Gordon’s situation raises a number of interesting legal issues. As explained below, the league would be well-positioned to repel any legal challenge.

According to published reports, Gordon submitted two urine samples to the NFL. One exhibited an impermissible amount of marijuana, but the other did not. Under a drug testing policy collectively bargained by the NFLPA, the NFL is authorized to punish Gordon for the failed test and can impose a higher penalty because Gordon is a repeat offender. The fact that one of Gordon’s two samples tested negative is of no consequence to the NFL. All it takes is one positive sample to trigger a penalty.

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​​In an appeals hearing with the NFL, Gordon argued that the positive sample was caused not by his own smoking but by inhalation of marijuana smoked by other persons, a phenomenon better known as “secondhand" smoke. Gordon also stressed that his positive sample was only slightly above the permissible threshold, and that the negative sample should reaffirm his commitment to following the league’s drug policy.

The NFL disagreed with Gordon and reasoned that he failed his drug test and thus warranted a penalty consistent with other players in his situation. The NFL rejected Gordon’s secondhand inhalation defense because players are ultimately responsible for what appears in their drug tests. Along those lines, allowing Gordon to use a secondhand inhalation defense could open the floodgates for other players to try the same: Any time a player tests positive, he might claim that secondhand inhalation and not his own misconduct was to blame.

Perhaps in a matter of days, Gordon could petition an Ohio judge to enjoin the NFL from carrying out the suspension. His argument would contend that while the NFL may have followed its policies, those policies violate Ohio law. Specifically, Ohio drug testing law could be interpreted to mean that the NFL is barred from suspending Gordon because one of his two samples tested negative. Ohio requires what is known as a “confirmatory test,” which essentially means that if an employee tests positive for drugs, a second sample must confirm the positive result. Gordon’s second sample was negative and thus contradicted, rather than confirmed, the positive sample.

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​Gordon’s legal argument could be strengthened by the StarCaps litigation, which arose in 2008 and centered on Minnesota Vikings players Pat and Kevin Williams. They tested positive for a banned diuretic in the weight-loss supplement StarCaps. These players claimed they had no idea StarCaps contained the diuretic, which has been used to mask the presence of steroids in urine samples.  Although they ultimately lost their case on grounds unrelated to Gordon’s situation, the Williamses succeeded in arguing that Minnesota law was not preempted by the NFL’s collectively bargained policies. An analogous finding by an Ohio judge (who would be an elected official, as Ohio elects its judges) would allow Gordon to argue that Ohio law protected him.

Gordon could also contend that marijuana is in a transformative era in law and medicine, and punishing him for it is categorically unfair. This argument would likely constitute more policy than law, but it is worth highlighting preliminary research by physicians (as I analyzed last year on that marijuana might help players recover from brain injuries.

NFL’s likely defenses

The NFL would be armed with multiple defenses in the event Gordon seeks an injunction.

1. Preemption by collective bargaining and the NFL’s need for uniform rules

Gordon is a member of the NFLPA and thus has contractually consented to follow employment policies collectively bargained by the NFLPA and NFL. His suspension is clearly based on one such policy. This is a straightforward and crucial point.

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​Judges are usually reluctant to disturb collectively bargained policies. They know that these policies reflect labor-management consensus and a complex set of negotiation tradeoffs. It isn’t as if the NFL unilaterally imposed the rule Gordon violated -- the rule was negotiated by players and owners as part of a larger discussion of rules that regulate players’ wages, hours and other working conditions. A judge could easily reason that if Gordon and other NFL players don’t like the policy warranting his suspension, they should elect new union leaders.

Judges also know that the NFL is incentivized under federal labor law to collectively bargain rules impacting players’ working conditions, since collectively bargained rules are immune from antitrust challenge. However, if the NFL reasons that collectively bargained drug policies are vulnerable to state laws, the league might also reason that it is not worth collectively bargaining those policies. Instead, the league could unilaterally impose rules and litigate them if necessary. Clearly, the NFL would not permit an arrangement whereby players are subjected to different drug testing rules by mere virtue of which states host their teams. Such an arrangement would provide some players and their teams competitive advantages and disadvantages, and undermine the notion of fair play.

Similarly, judges are often worried about the “slippery slope” of using state laws to circumvent rules protected by federal labor law, as to do so might incentivize union members to file lawsuits in different states. For instance, if Gordon can use Ohio law to escape NFL penalty, what is to stop suspended players on other NFL teams from using their states’ laws? The floodgates of litigation might be opened.

2. The NFL is not technically Gordon’s employer

Even if an Ohio judge reasons Ohio law is not preempted by the NFL’s drug policy, it is not clear that Gordon would win under Ohio law. The NFL could argue that it is not subject to Ohio law for employers’ drug testing because it is not Gordon’s employer. Gordon’s employer is the Cleveland Browns, with whom he signed his employment contract. There would be some irony in the NFL raising such an argument. Recall how the league argued before the U.S. Supreme Court in American Needle v. NFL that the NFL and its teams constitute a “single entity.” Yet with Gordon, the NFL would seek clear separation from the Browns.

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On the other hand, Gordon could maintain that while his employer is the Browns, the league clearly administers the drug testing policy, the league approves players’ contracts and the Browns’ employment of players is subject to league rules. Along those lines, the Browns are not an independent business that employs football players. The Browns are a franchise in the joint venture known as the NFL, without which the Browns would have no reason to exist.

3. Ohio law may only establish minimum procedures for testing

The NFL could also contend that Ohio law merely sets minimum procedures for drug testing and does not expressly preclude employers from imposing more rigorous testing. This argument might work if Gordon's argument centered on the amount of marijuana in his urine. But the fact that the dispute concerns one positive test and one negative test seems to be directly at odds with Ohio law, which requires a confirmatory test.

4. Injunctions are extraordinary measures

The NFL would stress to a judge that injunctions are extraordinary forms of relief and are seldom ordered. For his part, Gordon would need to convince a judge of four basic points, none of which would be easy to show.

First, Gordon would have to persuade a judge that he would probably win in a full trial. Gordon, as a result, would have to give the judge compelling reason to think that he can overcome the NFL’s legal defenses.

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​Second, Gordon would have to establish that the suspension would cause him "irreparable harm," a term generally defined to mean harm that cannot be adequately remedied by monetary damages. The problem for Gordon is that his harm -- a lost season -- seems capable of monetary remedy should he later win a trial. After all, Gordon is owed a specific and calculable salary and other employment benefits in the 2014 season, and sports business witnesses could offer insight on how a lost season financially harms his career going forward.

Third, Gordon would need to show that an injunction would not harm the NFL more than it helps him. The NFL would contend that an injunction would jeopardize league drug testing policies. An injunction could also prevent uniformity of rules among teams and players, which in turn might place some teams in advantageous positions over other teams. The NFL would insist that notions of fair play and competitiveness that are integral to pro sports leagues would be jeopardized by different drug testing rules for different teams.

Lastly, Gordon would have to present a viable argument that an injunction against the NFL would advance the public’s interest. He would stress that his suspension is profoundly unfair and excessive, but the NFL would counter that it is consistent with rules everyone has agreed to follow.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.