Sports Illustrated ran an informative piece today by Michael McCann analyzing Gordon’s chances should he seek relief from his one-year suspension in the Ohio court system.
The crux of Gordon’s argument would be that while he failed his test under the NFL’s drug policy which merely requires any trace of marijuana in his confirmatory test, under Ohio law the confirmatory test must also be positive. Because Gordon’s first test was above the 15 nanogram limit, but his second, the confirmatory test, was below it, he would actually have passed under Ohio law.
That seems pretty clear cut, assuming Ohio law applies.
The NFL’s defense, according to McCann is four-fold:
(1) The judge might be loath to override collectively-bargained-for rules set up between the league and its players.
It seems like this depends whether the Ohio law is deemed to protect players from unfairly strict policies from employers. If that’s the case, it should obviously supersede the CBA. If the law is merely a default in the event there’s no contractual agreement between the two parties about what constitutes a positive drug test, then it likely would not. (I don’t know how this law has been interpreted in the past, though apparently two Minnesota Vikings players won an injunction that turned on this point in Minnesota.)
McCann makes a related argument that if players could run to the states for relief, then you’d have different testing thresholds for every team in the league, giving some a competitive advantage. While that’s a minor problem (I seriously doubt the Vegas odds will shift based on state drug-testing laws) the NFL and players could remedy that by bringing the CBA’s policies in accordance with all state laws. Moreover, it would seem more impactful laws like some states not having sales or income taxes should affect the competitive landscape to a far greater extent, and the league is doing just fine.
(2) The NFL is not technically Gordon’s employer.
If the NFL wins on this, the fix is in. For purposes of this case, the NFL is acting exactly like an employer and, according to McCann, has argued in the past it was the players’ employer when it suited its interests.
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(3) Ohio may only establish minimum procedures for testing
This also seems like a weak defense especially if the point of the law was to protect employees from unfair employer drug policies. (I wonder if the invasiveness of the testing (70 tests in the past year) could also be used to argue the NFL is out of control here).
(4) Injunctions are hard to come by because you need to show:
a) He would probably win in a full trial – the Vikings players ultimately lost, but the facts were different. If Ohio law does supersede the CBA, this seems pretty open and shut.
b) Irreparable harm, i.e., not something that could be remedied later by a cash payout. I think this is also easy – he’s an athlete in his physical prime. Money isn’t the only goal – he can never have that year of his career back, and NFL careers are typically very short. He has a small window to perform at the highest level of his craft.
c) Injunction doesn’t harm the NFL more than it harms him – this is a layup. The NFL needs to fix its marijuana and testing policies anyway and probably makes more money with Gordon in it than out.
d) Injunction would advance the public’s interest – not sure exactly what this means, but seems like the public in Cleveland has a big interest in seeing Gordon play.
It seems to me the biggest question is what the judge makes of the CBA’s harsh testing rules and whether they’re superseded by Ohio law in the interest of protecting employees against unfairly strict employer drug policies. If that’s the case, the other defenses seem pretty weak to me. Then again, I was only a lawyer in the technical sense (I passed the bar, but never practiced), don’t know much about labor law, don’t know much about Ohio law and we don’t know who the judge is yet because Gordon, to our knowledge, hasn’t yet filed suit.
But from the SI article, I think Gordon’s case sounds promising should he go that route. If you drafted him, don’t drop him just yet.
Update: from McCann on Twitter:
— Michael McCann (@McCannSportsLaw) August 29, 2014
Update II: Cedric Hopkins from Field and Court also posted his take:
I’ve been asked a number of questions re: the procedure/timing for Josh Gordon getting a TRO. Here are the details: http://t.co/dnX845JeLP
— Cedric Hopkins (@FieldandCourt) August 29, 2014