Possibility of litigation for Josh Gordon hasn’t been discussed yet


So what happens if/when hearing officer and NFL executive V.P. of labor relations Harold Henderson decides to apply the substance-abuse policy as written and suspend Browns receiver Josh Gordon?  Good question.

Litigation is possible, but it’s not easy to persuade a court to ignore the results of an arbitration process.  Only in rare cases will a judge ignore the outcome of a private dispute-resolution process, since private dispute-resolution processes lighten the loads for judges throughout the country.

Per a source with knowledge of the situation, the possibility of suing over a Josh Gordon suspension hasn’t been discussed yet.

In recent years, players haven’t fared well when it comes to fighting the outcome of an arbitration that resolves a dispute over application of the substance-abuse policy or the PED policy.  Two years ago, the NFLPA challenged in court Commissioner Roger Goodell’s handling of the player suspensions arising from the bounty scandal, ultimately prompting him to choose to defer the appeals to former Commissioner Paul Tagliabue, who overturned all punishments.

The substance-abuse policy, with its steps and stages and formulas, entails a much narrower band of discretion.  Which will make it harder to fashion a legal argument that would overcome the suspension.  While it’s possible that a StarCaps-style attack could delay the suspension, it becomes very difficult to overturn the strict, literal application of a collectively-bargained policy regarding the use of marijuana and other street drugs.

41 responses to “Possibility of litigation for Josh Gordon hasn’t been discussed yet

  1. One way to get into court from arbitration, though, is if the decision is arbitrary and capricious.

    The fact that another player with the same sample could result in a passed test shows the result is arbitrary.

    Again, players have not fared well seeking a court to overrule arbitration but Gordon has a uniques set of facts. Probably better facts than any other player that previously tried.

    The real question is whether the suspension would start immediately or be delayed until a state court ruled.

  2. Cannabis is the worst influence on the youth of this great nation. If only we could eliminate this devil weed all of our nation’s problems would go away.

    The NFL should join every other major employer in the USA and not drug test for cannabis. Ridiculous.

  3. Goodell is the judge, jury and executioner in these cases, and the players have nobody to blame but themselves for collectively bargaining for this in the first place.

    I really wish the players could realistically holdout for over a year, maybe 2.

    The NFL would cave and they would get SO much of what they wanted.

    Personally, I WANT to see my players on steroids, if that’s what they so choose. Just let them take ’em. They do anyways. And if they want to ruin their bodies, let ’em.

    Screw Goodell. Nobody tunes in on Sundays to watch Roger Goodell. The NFL would be nonexistent without the players.

  4. Yeah if he loses the full year he should consider talking to a lawyer and see if there might be a case for insufficient and misrepresentation against the NFLPA and to inquire about the NFL’s complacency of that problem in addition to the other stuff that they might be liable for.

  5. And yes, I do realize that Josh Gordon was suspended for marijuana use, not steroids.

    The point is, if the players want to do it, let them do it.

    Josh Gordon was fun to watch last year, wasn’t he? Well, then there’s proof that Gordon, stoned out of his mind on weed in his downtime, is still entertaining to watch on Sundays.

  6. Bottom line, the CBA says you can’t do it. You are responsible for what is in your body. If you can’t be responsible enough to separate yourself from the situation, the league is not obligated to let you play. These are rules that the owners and the players agreed to.

  7. Let That Man Play…

    It seems the NFL hates when someone who uses marijuana, can still produce at a high (no pun intended) level year in and year out! Did it with Ricky Williams and now, Josh Gordon.

  8. Star caps used state law v NFL law and won. 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.”

    Seems like his lawyers have precedent and state law on their side

  9. I maintain that the arbitrariness of the decision to split the test into A and B samples here provides ample material for appellate review. I’m an attorney that handles lots of administrative hearings and I’d take this case any day and twice on Sunday.

  10. Setting aside how crazy low the NFL’s THC threshhold is for positive tests, I still can’t get past the notion that both samples are not required to meet or exceed the minimal threshold for a positive test to result.

    How does that make any sense at all?

  11. I am still confused by the fact that Goodell thinks smoking something that is legal in many states is worse than punching your fiance in the head. And while your at it explain to me how marijuana gives you a competitive advantage?

  12. I’m not about sharing it with people who don’t/nor care, but this guy basically lined my pockets with fantasy FB winnings. At the same time, take some responsibility man. You did the crime(s).

  13. I just do not get how one employee can knocked out a woman and drag her afterward and get a 2 game suspension. While Josh may be a colossal idiot for continuing to smoke pot, pot is not a performance enhancing product. 3 to 4 games max. Cut weed from the prohibitive drugs.

  14. Yet ray ray walks away missing one game check. What a joke. This guy misses an entire season based in a coin flip of two urine samples. Marajuana laws are so stupid. When are people going to open their eyes and realize how much worse alchohol is.

  15. In light of the 2 game Ray Rice suspension, I think they need to rework all their policies. I have a hard time suspending a guy for a whole season for smoking marijuana while a wife beater gets 2 lousy games.

  16. If Ray Rice got 2 games for assaulting a woman, I think Gordon should be suspended from the Browns training facility for 2 hours.

  17. Do the crime, do the time.

    Gordon is a four time loser going on five counting his recent DUI.

    He has used up his chances and deserves the full one-year suspension.

    When and if the NFL relaxes their stance on marijuana has no bearing on what has already happened.

    Gordon knew the rules, knew the consequences and knew the impact it would have on his team.

    He then made his choices.

    The time has come to live with it.

  18. I dont see how suing could possibly result in anything good for Gordon.

    The CBA clearly outlines the steps, stages, and punishments for violations of the PED/Substance Abuse program. If he violated the program, he is subject to a set punishment.

    I dont see how you can sue for something that you agreed to. If he hadnt smoked marijuana, there would be no A cup, B cup issue. He would have come up with 0 ng/ml, and it would be a nonissue. What are you going to sue for exactly?

  19. To the extent it may allow Gordon to keep playing until the suit is resolved, it may be worth it.

    OTOH if the suit is ultimately ruled frivolous, it could wind up costing him a lot more, both in money and suspension time — which almost certainly would be longer than if he had just accepted the original ruling and moved on.

  20. He probably wouldn’t challenge the rules of the NFL. He would more likely challenge that, under Ohio laws, he didn’t break any rules. The laws of Ohio state that both samples must come to the same conclusion. I’m assuming he will argue that the NFL’s “B Test” policy is illegal.

  21. Why doesn’t the NFL (Commissioner) and the NFLPA. Do a letter of Memorandum to the contract in regards to drug testing. Putting it in line with WADA. I’m all for U.S. entities making a stand, but really? We have had three Presidents that have gotten stoned.

    It would take a little time. You can always go back at the end of the contract and fix the suspension. Going forward do a letter of memorandum on drug testing (marijuana) threshold.

    It is that easy and you, don’t have to blow up the contract.

  22. What type of message does this leave for our youth athletes (and even non-athletes) ?

    Hey dont do drugs or beat your wife! but if youre going to do one or the other, beating your wife is the better option. The suspensions should be flip-flopped. I believe thats the feeling of most. Its mine anyways. But i do see where some actions warrant greater suspensions and penalties than others. But….. there should be a bottom line for all penalties.

    Break a rule, suspended for however long, 1,2, or 3 game minimun… repeat offenders should be treated differently , as was gordon. BUt the year suspension is a little overboard in my eyes

  23. aholybuckeye says:
    Aug 5, 2014 9:20 AM
    He probably wouldn’t challenge the rules of the NFL. He would more likely challenge that, under Ohio laws, he didn’t break any rules. The laws of Ohio state that both samples must come to the same conclusion. I’m assuming he will argue that the NFL’s “B Test” policy is illegal


    He is not an employee of the Browns. He is considered an employee of the NFL. Which is a nationwide company, which needs to follow Federal laws.

    It isnt like the NFL is choosing to suspend him. Its all in his CBA. It is a set suspension. There is nothing arbitrary about his suspension.

  24. pfu2 says: Aug 4, 2014 9:18 PM

    Set Josh Gordon free!


    Spoken like a true fan of a team that has no other WR’s. This is a bigger problem than football & ‘setting him free’ would just be enabling him. CWhen he’s not failing drug tests then he’s driving under the influence. No matter how you slice it–if this kid doesn’t pull a Chris Carter or Jared Allen (get sober & stay sober) bad things are going to happen to him.

  25. No matter what anyone’s opinion is regarding the recreational use of marijuana, it is still illegal on a federal level and in most states.

    It’s also on the banned substance list that the league and NFLPA collectively agreed to, so it’s against the rules for players to partake, regardless of whether or not it gives a competitive advantage.

    Drug suspensions are also collectively bargained and it is spelled out specifically what they will be for each repeated offense. Personal conduct violations are punished at the discretion of the commissioner based on any and all information available, which was also collectively bargained.

    Gordon can’t claim he didn’t know the rules–he’s already broken them multiple times and I’m sure someone explained them to him again every time he tested hot–and now he’s going to pay the consequences for his blatant disregard of those rules.

    Now, for everyone thinking Gordon’s impending suspension is unfair in comparison to Rice’s, the NFL isn’t doling out punishment that is in any way inconsistent from the way the judicial system does so. A guy without any past history will (and did) get the kid glove treatment from the courts, but a guy who is a repeat offender (yes, even for smoking weed) is no longer entitled to and will not receive the benefit of the doubt when punishment is handed down.

    I’m not sure why any of this is so difficult for so many folks to comprehend. Welcome to the real world and stop your whining already.

  26. For those of you referencing Ray Rice and his “weak” 2 game suspension, what would you all say if I told you there were other players that got either no suspension at all or only 1 game for the same offense?

    Because that is actually the truth.

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