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Legal insight into Josh Gordon’s CFL inquiry

I’m not a lawyer, but I’ve been inquiring about the possibilities of Josh Gordon’s potential cases against the NFL, especially given his recent involvement with the CFL. Some have claimed he has no case and others think there’s always lawsuit potential. I tend to just assume the latter, but getting from that assumption to guessing what might actually be happening are very different things. So, I found it interesting when I got the following possibility emailed to me by an attorney.

Consider instead the possibility that his legal team and agent knew the Browns would nix any CFL talk and that they mean to use the fact that he has been declared ineligible to play anywhere but in Cleveland as evidence of “irreparable harm,” in order to secure temporary injunctive relief from his suspension while the court considers whether to permanently enjoin his suspension. Proof of irreparable harm would be necessary to secure such temporary relief, and one way to go about showing it in an employment setting is to demonstrate that, absent temporary relief while the case is pending, the employee would have no means of obtaining gainful employment. It’s generally against public policy to leave someone without the means to earn a living in his trade.

I’m still trying to figure out what all this means, and I should probably just wait, but I’m curious like that. Does “exploring options” mean there are five people sitting in a room somewhere putting a potential suit together? Are they digging through cases for relevant ammunition in this current case? Are they focused on federal or state laws?

Any attorneys who would like to weigh in, I’m all ears. Sometimes I hate when sports isn’t about games, but this is the hand that we Browns fans were dealt when Tom Heckert traded into the supplemental second round to select a guy who has sick abilities on the field… you know… when he’s allowed to be on it.

(Photo by Scott Sargent/WFNY)

  • Pat Leonard

    I didn’t hear it, but now that I’ve heard it, I don’t believe it. Whoever put out that rumor had probably just watched “A Few Good Men”.

    “Do it Josh, it’s a hockey season… errrr a month!!”

    “I will not dishonor myself, my teammates, or the Browns so I can come back in 4 games! SIR!”

  • whosevelt

    I’m a little late on this, and while I’m not a lawyer, I did graduate law school so I hope I can add something to the discussion, law school exam style.
    1. I skimmed the drug policy and it seemed to be ambiguous as to the effect of secondhand ingestion. The introduction says that the purpose of the policy is to stop players from taking drugs. The actual policy says that failing a test puts you into the program. Gordon will argue that the meaning should be that failing a test creates a presumption of guilt, but a player who contests that should not be penalized.
    2. Even if the agreement clearly calls for players to be penalized for failed tests alone, regardless of actual culpability, Gordon can argue that it’s an unconscionable term because it penalizes him for something that is non-volitional.
    3. I know less about actual practice but I guess it’s possible that he wants to get a show cause order against the NFL. There are roughly three categories of injunctions – court orders that the NFL can’t do what they are attempting to do (injunction, temporary restraining order, and order to show cause). An order to show cause is a TRO on steroids – he files his claim and asks the judge to grant his temporary order immediately unless the other side can show within a week or so why the judge shouldn’t. This is what he would likely need if he is going to play during the first month.
    In order to get an order to show cause, he probably has to show something like (a)likelihood of success on the merits (b) irreparable harm (c) balance of interests favors the plaintiff. I don’t think it’s crazy to think he might win. Is it reasonable to think a player should be penalized for secondhand smoke, if it’s not in the contract? The harm would be irreparable insofar as the team would be dramatically worse without him, so even refunding his game check later wouldn’t make up for it. The NFL doesn’t lose anything by letting the process play out. In the first place, they don’t lose much by not suspending him at all. But even if they absolutely MUST suspend him, what do they lose if it’s next year?

  • Robin Samways

    Just a theory…

    In the wake of the marijuana reform in the US, it is obvious there are plenty of people who are still vehemently against marijuana for whatever reason (Satan lures innocent souls into evil-doing with it, apparently). Now, the NFL has always tried to be progressive without alienating any particular demographic in their fan-base, including hard-core anti-pot weirdos. Yet, here they are losing a very precious commodity (aka Josh Gordon) because out-dated policies still reflect nonsensical ideals.

    What if the NFL (realizing they are stuck) is actually working with Gordon’s legal team to create a scenario that looks like they are upholding the nonsense while giving Gordon a way to get back on the field against their wishes? They save face with the nutters and still reap the benefits of his awesome talents.

    It’s out there, but not unreasonable. 🙂

  • Timmy

    The NFLPA is criminally stupid and the weakest union in pro sports. It doesn’t make sense that either side would agree to a form of arbitration that has no legal standing.

  • Dubie

    Waiting until after week 1 for this reason seems extremely unlikely to me. I think the NFL’s stance is pretty clear, i.e., when they oppose the injunction they won’t take the position that he could have played week 1 (harm) without the injunction.

  • Brian V Streeter

    Looks like all is well ends well. Crossing my fingers.