Chapter[ XI. Recommendations ]
Section[ A. 3. The Commissioner’s Office Should Actively Use the Clubs’ Powers, as Employer, to Investigate Violations of the Joint Program ]
3. The Commissioner’s Office Should Actively Use the Clubs’ Powers, as Employer, to Investigate Violations of the Joint Program
One of the critical tools available to all employers is the investigatory interview.
Generally, an employer may compel union-represented employees to attend and truthfully
respond during any interview conducted by or on behalf of the employer.569
The Ferguson Jenkins arbitration decision has played a role in the interpretation of
a player’s rights during an investigatory interview.570 In Jenkins, an arbitrator ruled that the
Commissioner could not impose discipline upon Jenkins for refusing to answer questions about
alleged possession of drugs of abuse while Jenkins was facing criminal charges for the same
conduct.
According to the Commissioner’s Office and the Players Association, however,
no major league player ever has been convicted of a criminal offense for the use or possession of
569 Where the employee reasonably believes the investigatory interview might result in
disciplinary action, he has the right to representation at that interview. See NLRB v.
J. Weingarten, Inc., 420 U.S. 251, 257 (1975) (“[T]he employee's right to request representation
as a condition of participation in an interview is limited to situations where the employee
reasonably believe[s] the investigation will result in disciplinary action.”). The Basic Agreement
also requires advance notice of such an interview. Basic Agreement, Art. XII(E).
570 See supra at 29-31.
291
performance enhancing substances. And, as noted elsewhere in this report, the policy of the
Department of Justice, and of other prosecutors, is to prosecute the manufacturers, importers, and
distributors of performance enhancing substances, not the athletes who use them. Thus, the basis
on which the Jenkins arbitrator relied – pending criminal charges against the athlete based on the
same conduct – will rarely be an issue.
The Commissioner’s Office has these interview rights to ensure that its rules are
followed, but before this investigation began active major league players were rarely required to
participate in investigatory interviews regarding alleged performance enhancing substance
violations. Since this investigation began, however, the Commissioner’s Office has conducted a
number of interviews of major league players accused of performance enhancing substance
violations, and the Commissioner has disciplined some of those players.
Unless there are compelling individual circumstances to the contrary, the
Department of Investigations, once established, should promptly seek to interview any player
about whom allegations are received of performance enhancing substance violations and insist
upon full cooperation. Where law enforcement efforts have been the source of the information,
the Department should seek corroboration where possible (for example, records indicating the
ordering or receipt of such substances) so that it has evidence to present to the player. This
practice would bring Major League Baseball into conformity with other employers.
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