Legal Look: Gordon's suspension, CFL and possible lawsuit

Eric Macramalla, Sports Legal Analyst
8/28/2014 12:36:10 PM
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On Wednesday, NFL hearing officer Harold Henderson upheld Josh Gordon's one-year suspension after the wide receiver violated the league's Program for Substances of Abuse Policy by testing positive for marijuana.

The Positive Test
Gordon barely failed his drug test. In order to test positive, a player's urine sample must have a concentration of more than 15 nanograms per milliliter. As per the NFL Policy, Gordon submitted two samples for testing: Samples A and B. Of the two, only Sample A tested positive at 16 nanograms/milliliter, which was only one milliliter over the allowable limit. Sample B tested negative at 13.6 nanograms/milliliter.
On appeal, Gordon argued that the positive test was the result of second-hand smoke. Gordon also pointed to testing irregularities given that Sample A was over the allowable limit, while Sample B was under it.
The Statement
Gordon released the following statement on his suspension, via the NFLPA:
"I'd like to apologize to my teammates, coaches, the Cleveland Browns organization and our fans. I am very disappointed that the NFL and its hearing office didn't exercise better discretion and judgment in my case. I would like to sincerely thank the people who have been incredibly supportive of me during this challenging time, including my family, my agent, my union, my legal team, and the Cleveland Browns staff."
The Policy
The NFL substance abuse policy provides that a player cannot engage in the "use, possession, acquisition, sale, or distribution" of banned substances. So the conclusion that the Policy directly covers second-hand smoke is not accurate.

The clear implication of the language is that a player must himself be using the banned substance. If second-hand smoke were captured by the Policy, you would expect to see language like "exposed to" in the Policy. For that reason, Gordon introduced the second-hand smoke defence. Ultimately, however, the NFL didn't buy it.
Next Steps For Gordon
Gordon is losing a lot with this suspension. Apart from being out a full year, he won't be paid his 2014 base salary of $825,604. So expect Gordon's legal team to consider all its options, including filing a lawsuit with a view to overturning the suspension. As part of the defence, Gordon's lawyers could bring in a toxicologist to support the position that second-hand smoke could result in Gordon's positive test. His lawyers would also argue that the test results are unreliable given that they are inconsistent.
Here's the problem for Gordon: a Court will not interfere with an arbitrator's decision unless a very serious mistake was made. Judges generally defer to the expertise of arbitrators. As well, the NFL Policy provides that all decisions are "resolved exclusively and finally", which means decisions are final and binding. Again, even if a decision is final, it can still be challenged in Court, but absent a clear error, it will not be overturned.
So if Gordon does take this to Court, he will face an uphill battle. As well, expect the NFL to vigorously defend the case.
According to one report, Gordon may try and take his talents to the CFL. However, a suspended player under contract to an NFL team is ineligible to play in the CFL. In any event, even if the CFL elected not to honor the suspension, Gordon is still under contract with the Browns and would therefore need the team's permission to play in the CFL. The Browns, of course, would not allow it.
Rice v. Gordon
There has been a lot made of Ray Rice only getting two games for knocking his fiancée unconscious, while Gordon got 16 games for allegedly smoking marijuana. While that reaction is completely understandable, it is important to note that drug suspensions are collectively bargained and agreed to by the players' union, the NFLPA.

On the other hand, domestic violence is governed by the Personal Conduct Policy, which was not collectively bargained and unilaterally imposed by the NFL (it's noteworthy, though, that the late executive director of the NFLPA, Gene Upshaw, publicly supported the Policy, and Commissioner Roger Goodell did consult with some NFL players before it was implemented.)
Of course, the absence of a collectively bargained punishment for domestic violence did not preclude a harsher suspension for Rice. However, from a legal standpoint, Rice's reprehensible conduct is irrelevant when determining Gordon's suspension.
A Shame
Gordon is a stud wide receiver. Since 1970 NFL-AFL merger, only Randy Moss and Jerry Rice have recorded more receiving yards in their first two seasons. Gordon also led the league in receiving yards in 2013, had the most yards-per-catch among receivers with over 1,000 yards and became the first receiver with two consecutive 200 yard regular season games.
Amid all this controversy, one thing is clear: fans lose by not getting to watch Gordon play NFL football this season. And that's a shame. Rules are rules though.

Josh Gordon (Photo: The Canadian Press)


(Photo: The Canadian Press)
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