I’ve already explained why Josh Gordon should win his appeal. But what if he doesn’t? After all, he does play for the Cleveland Browns. (Sorry, Dad. That one was just too easy.)
But that was the question posed to me by Michael Salfino, the guy who wants to retweet his own retweets:
I hit my legal databases, the Ohio Code and poured over several Ohio state cases, as well as numerous federal law cases involving labor disputes. I've outlinged what you can expect to see if Gordon takes an “L.”
Gordon's Pending Appeal & Aftermath
Gordon’s appeal hearing began on Friday and is resuming Monday. I believe Harold Henderson will make his decision fairly soon.
Within hours of losing his appeal (which, of course, I’m assuming he does for purposes of this article) Gordon will file a lawsuit with the clerk of the Cuyahoga County Court of Common Pleas, the state court in Cleveland, Ohio.
Simultaneously with filing a civil suit, Gordon will file a request for a temporary restraining order against the NFL. No, this isn’t what your crazy ex-girlfriend filed against you for calling her too much.
Gordon’s request for a temporary restraining order (or, TRO) will ask the Ohio judge to stop (or restrain) the NFL from enforcing his suspension. If you recall, the TRO in the StarCaps case (that was later turned into an injunction, which is basically the same thing) allowed the Kevin and Pat Williams to play for two complete seasons. They played the 2009 and 2010 seasons while their case was pending in the court system.
To secure the restraining order, Gordon will have to show he “is entitled to the relief demanded” in the underlying lawsuit. He will also have to show that if the restraining order is not granted, he will suffer permanent injury.
This “injury” isn’t a torn ACL or the like, but rather a lost NFL season. Obviously, that will be easy for Gordon to show.
Gordon also has to prove that the NFL “is doing, threatens or is about to do” what he is asking the judge to stop the NFL from doing. The NFL isn’t showing any signs of letting up or allowing Gordon to play, so proving this factor won’t be difficult.
The tougher challenge Gordon faces is showing that he is entitled to relief. I think he is, based on Ohio law.
Ohio’s Drug-Testing Laws Applied To Gordon’s Case
The strongest claim Gordon will argue is that under Ohio law (but using the NFL’s cutoff levels) he did not test positive for marijuana or, more accurately, THC metabolites.
As I’m sure you know by now, the NFL divides a player’s urine into two bottles: bottles “A” and “B.” If bottle “A” is positive for the THC metabolite, then bottle “B” is used to confirm what was in bottle "A."
According to Section I(C)(3)(e) of the NFL's Substance Abuse Policy, as long as bottle “B” contains the THC metabolite (at any level), then the sample is considered positive and the player is subject to the league’s discipline.
Ohio law differs.
Under Ohio law (Ohio Code 123:1-76-07), only “specimens which test negative on the initial test or negative on the confirmatory test shall be reported as negative.” If the NFL is bound by Ohio law, Gordon’s confirmatory test was negative. Hence, he did not test positive for marijuana as claimed by the NFL.
But the NFL's Substance Abuse Policy, as written, does not mirror Ohio law. More specifically, Section I(C)(3)(e) of the NFL policy states that "the "B" bottle Test need only show that the substance, revealed in the "A" bottle Test, is evident to the "limits of detection" to confirm the results of the "A" bottle Test."
Again, Ohio law says that both the initial drug test and the confirmation test must be positive. Or, as Ohio wrote its law, if either of the specimens are negative then the employer is obligated to report the result as negative.
The NFL will attempt to circumvent Ohio law by arguing only federal law applies to the Collective Bargaining Agreement and Substance Abuse Policy. This is a preemption doctrine that will effectively wipe out Gordon's state-law claims. The NFL attempted this argument against Kevin and Pat Williams in the StarCaps case and lost.
Federal courts have already found that the NFL is an employer of each NFL player and therefore is bound by the state laws where that player is employed. So Ohio courts should ultimately decide the case and Ohio law should control the outcome of the case.
And in Gordon’s case, once the confirmation test showed Gordon was under his employer’s threshold amount for marijuana, the test was “negative” under state law. The NFL found otherwise, contradicting state law.
The difference between the StarCaps case and Gordon’s case is critical.
The Williamses argued that Minnesota state law precluded the NFL from disciplining them for violations of the NFL’s Substance Abuse Policy. In other words, the Williamses were taking the position that Vikings players were only subject to discipline under state law, not the NFL.
That’s not Gordon’s claim.
Gordon isn’t asserting he is immune from the NFL’s discipline for violations of the policy. He’s arguing (or should be) there simply was no violation.
As shown above, Gordon’s drug test, carried out to its completion, did not meet the definition of “positive drug result,” under Ohio law. The secondary claim for Gordon would then be that the NFL’s drug-testing policy, as implemented, violates Ohio state law.
But let's keep focused on whether or not he provided a "positive test result" under Ohio law.
If Gordon’s claim—that he did not test positive under Ohio law—(if that is, in fact, what he claims in this hypothetical lawsuit I'm drawing up for him) holds up, as I think it should, then the state court should find the NFL’s testing procedure violates state law, find Gordon did not test positive for the THC metabolite and vacate any suspension imposed by the NFL.
Gordon will likely have a number of other claims, such as a defamation claim, a breach of contract claim and a couple of others his lawyers will throw in. I only highlighted his strongest claim while trying to avoid your faces hitting the keyboard from reading about the difference between libel and slander and the nuances of a breached contract.
[Bang it here to follow me on Twitter (Opens in separate window)]
Agreement Not To Sue
Salfino also asked about the agreement between the NFLPA and NFL not to sue each other. That agreement is contained in Article III, Section 2 of the new Collective Bargaining Agreement.
The agreement not to sue is an agreement about issues arising out of the Collective Bargaining Agreement, not the Substance Abuse Policy. In fact, Section 2 of the CBA lists the terms of the agreement that they won’t sue each other over—the Substance Abuse Policy is not listed.
What is mentioned, however, is that the players retain the right to enforce labor laws. And those laws are what Gordon will use to attack the NFL’s finding that his drug test was positive—or at least he should.
Because Gordon has such a solid case against the NFL based on the Ohio drug-testing laws, I believe his TRO will be granted and he will play in the 2014 season. This is all assuming he loses his appeal, which he shouldn’t.