With the Browns suspending receiver Josh Gordon for the final game of the 2014 regular season, a fight is now looming over whether Gordon will be an unrestricted free agent or a restricted free agent following the 2015 season.
Acquired by the Browns via the 2012 supplemental draft, Gordon currently is completing his third NFL season. But because (per a league source) the Browns have decided to suspend Gordon without pay for Sunday’s game against the Ravens, the NFL is now expected to take the position that Gordon has not gained a third “accrued season” for the purposes of becoming a free agent.
The league will contend that Gordon did not acquire a third accrued season (he needs four to become an unrestricted free agent) because the league believes that a player obtains an accrued season for each season in which he spends six games on the Active List or Inactive List or on Reserve/Injured or Reserve/Physically Unable to Perform.
Article 8(1)(a) of the Collective Bargaining Agreement, however, provides a different definition: “For the purposes of calculating Accrued Seasons under this Agreement, a player shall receive one Accrued Season for each season during which he was on, or should have been on, full pay status for a total of six or more regular season games, but which, irrespective of the player’s pay status, shall not include games for which the player was on: (i) the Exempt Commissioner Permission List, (ii) the Reserve PUP List as a result of a nonfootball injury, or (iii) a Club’s Practice Squad.”
The first legal fight will focus on whether a suspension without pay was justified. If the player wins round one, round two becomes irrelevant; if it’s determined he should have been paid for Week 17, Gordon will have been on full pay status for six games.
The second round, if there is one, will center on the meaning of the phrase “during which he was on, or should have been on, full pay status for a total of six or more regular season games.” When combined with three specific types of categories that do not count toward the six-game minimum, the phrase “should have been on . . . full pay status” seems to include, based on its common-sense meaning, players who aren’t on full-pay status for reasons such as a team-imposed suspension or a league-imposed suspension for violating the substance-abuse policy.
The phrase “should have been on” has meaning, or it wouldn’t have been included. Without the phrase “should have been on,” it would be an easy decision; Gordon wasn’t on “full pay status” for six or more regular-season games.
The NFL will offer, at the appropriate time, an interpretation of the phrase that excludes players who are suspended by the team or the league. The NFLPA will tender an interpretation rooted in the common-sense application of the phrase and the listing of three types of exempt categories other than a player on suspension by the team or suspension by the league for violating the substance-abuse policy.
If the suspension without pay is upheld, at some point an interpretation of Article 8(1)(a) will be needed. The plain language suggests that the NFLPA and Gordon should prevail.