The Patriots, CBA Loopholes, and Josh Gordon

The Patriots placed Josh Gordon on Injured Reserve today a move that was more or less signaled by a trade for receiver Mohamed Sanu the day before. Normally there would be no need to talk about this but I have gotten a number of questions on it due to a few comments I made on Twitter about Gordon’s status and why they may be doing this so I thought it made some sense to write about it here rather than answer them directly. Again as always answers are my interpretation of the CBA and I am always open to correction.

Almost immediately after being place on IR there were numerous media reports saying Gordon is more or less good to go and plans on picking up with another team. That would seem like an odd statement since he in on IR for the Patriots, which would indicate to me that Gordon has a very minor injury. The NFL does not allow you to stash players on IR so as soon as he is healthy he would have to be released.

How hurt Gordon is may be a pretty subjective. He did not play in this week’s game against the Jets and was declared inactive. He could have been placed on IR then though it is not uncommon to carry a player for a few weeks as he works through an injury and then you use IR when it isn’t getting better. Based on the reports that he is ready to play leads me to think that they moved him to IR because they needed a roster spot for Sanu and are looking to bide their time with Gordon for a reason Ill get to in a moment.

Gordon falls in a really weird area in terms of contract protection because of his time in the NFL. Gordon has been in the NFL on and off since 2012, missing multiple games and entire seasons for substance abuse problems. Because of that Gordon was just a restricted free agent in 2019 and signed a one year tender with the Patriots for $2.025 million.

In most cases RFA’s have no contractual guarantees via the NFL’s termination pay policy (the policy that says a veterans salary is guaranteed if he is on the week 1 roster), but the criteria to reach the threshold to qualify for termination pay is much lower than  the threshold for free agency. Free agency requires six games in a season. Termination pay is tied to the NFL’s retirement plan which only requires three games on a roster (or one year with 8 games as a Practice Squad member). So Gordon should have his contracted protected via termination pay and the Patriots are pretty much starved for salary cap space.

Waivers are also tied to the looser retirement plan qualification so Gordon is not eligible. That would mean that if Gordon was released today he would be a free agent that was free to sign with any of the 31 other teams in the NFL and also collect the balance of his salary, about $1.08 million, from New England.  However, if Gordon was eligible for waivers it would mean that if his contract was claimed the responsibility for the $1.08 million would go to the team that claims him. That solves some cap issues for New England.

The catch here is that the rules for who is and is not eligible for waivers changes next week. Once the trade deadline passes all players are subject to waivers beginning on October 30. So by probably taking an approach to IR that probably fits the proper criteria even if most other teams would just release the player, the Patriots will have their chance to get $952,000 in cap relief by holding onto him an extra week and keeping their fingers crossed that someone claims him.

Gordon is not expensive and it would make sense that someone takes a shot on him for that amount of money. While someone may not look at a bad team as a likely destination I think for a “tanking” team it makes sense. Gordon will be a UFA next year so the $952K investment could lead to something like a 6th round draft pick or at least some kind of protection for some other compensatory picks. So I don’t think you can discount a team like the Bengals who rarely spend in free agency and could gain draft capital or even the cap starved Falcons with the move. Who know maybe the Jets would do it if they trade Robby Anderson. So it is probably a good move by New England in that regard as it could block them from sending Gordon to a contender that they could meet in the playoffs.

Now you can also trade players off IR but I believe that is only players with a major injury and it does not sound like Gordon would fit that bill. So I would think this is all about creating a roster spot for one week and hoping they can get cap relief from another team, preferably a non-playoff one, rather than also opening a trade market. It’s a pretty shrewd move if that is the gameplan, though if I was Gordon Im not sure how thrilled I would be with it.

Questions about this article? Reach Jason Fitzgerald on Twitter at @Jason_OTC