Daylight is expected to arrive soon.
Schaffer tells PFT that he plans to file next week a lawsuit challenging the decision to suspend Browner. The complaint will be accompanied by a motion for preliminary injunction, asking the court to allow Browner to become a free agent on March 11, which would have happened but for the suspension. Schaffer also will ask that Browner remain eligible to practice and play until the lawsuit is resolved.
Cases attacking the arbitration process mandated by the NFL’s Collective Bargaining Agreement typically fail due to a high standard aimed at respecting such outcomes. Browner brings to the table a unique twist. Although his latest violation of the substance-abuse policy happened while he was an employee of the NFL and a member of the NFL Players Association, Schaffer will argue that the violations placing Browner one strike away from an indefinite suspension lasting at least one year happened while he wasn’t employed by any NFL team, and while he wasn’t a member of the NFLPA.
Browner will contend that the NFL continued to subject him to periodic drug testing after he was cut by the Denver Broncos in 2006. Browner also will contend that the NFL notified him of those tests at an address where he no longer resided, and that the NFLPA never informed him of the mounting penalties and suspensions arising from his failure to submit to testing during the five years after he was cut by the Broncos and returned to the NFL with the Seattle Seahawks.
As PFT has previously reported, Browner actually had been placed on indefinite suspension before he returned to the NFL in 2011, but he somehow slipped through the cracks when he signed in Seattle. The league eventually placed him in Stage 3 in lieu of retroactively ejecting him from the league.
The lawsuit will be accompanied by an administrative complaint with the Equal Employment Opportunity Commission claiming that the NFL’s overall approach to players who chronically test positive for marijuana violates the Americans with Disabilities Act. Browner is expected to argue that the NFL at a minimum views players who repeatedly violate the policy as being addicted to marijuana, and that the league’s handling of those players violates the duty to provide a reasonable accommodation.
Here’s a potential accommodation the NFL may want to consider: Quit worrying about what guys do on their own time unless and until they get arrested for something. When it comes to marijuana, that wouldn’t happen at all in Colorado or Washington.
Speaking of Colorado, which has legalized marijuana use for recreational purposes, that’s where the lawsuit will be filed. And that’s not a bad choice of venue given the local attitudes toward a substance that the NFL still refuses to allow its players to use, for any reason.
Apart from seeking a preliminary injunction allowing Browner to return to the NFL pending the outcome of the case, the lawsuit will seek all available financial damages arising from the league’s decision to suspend Browner for things that happened while he wasn’t an employee of the NFL or a member of the NFLPA.
“I’m not afraid to fight City Hall,” Schaffer told PFT by phone on Wednesday. “I’ve bent over backward to find a way to work something out with the league to make everyone comfortable.”
The NFL had no comment on the situation.
“I don’t understand how the league can ruin someone’s career over this fact pattern,” Schaffer said. “I’ll represent Brandon zealously to make sure his career isn’t ruined.”
Schaffer says he isn’t troubled by the possibility that taking up this specific fight will have separate consequences for Browner, or for his lawyer.
“My job is to protect my player,” Schaffer said. “You can use the word ‘blackball’ for Brandon. I could get blackballed, too. But I don’t care. I’d do it every day of the week.”
On one specific day next week, Schaffer will launch a process that could force the NFL to ultimately take a long look at how it administers the substance-abuse program — specifically as it relates to marijuana.