Chapter[ III. The Governing Laws and Baseball Policies Regarding Possession or Use
of Performance Enhancing Substances ]
Section[ B. 2. The Ferguson Jenkins Decision ]
2. The Ferguson Jenkins Decision
In 1980, future Hall of Fame member Ferguson Jenkins, then a pitcher with the
Texas Rangers, was arrested in Canada for possession of marijuana, hashish, and cocaine
discovered by customs officials in an inspection of luggage on the team’s charter flight into
Toronto. In an interview by baseball officials following his arrest, Jenkins declined to answer
certain questions on the advice of his counsel.94
Commissioner Kuhn suspended Jenkins with pay because he “declined to
cooperate” with the Commissioner’s investigation of the incident.95 The Players Association
filed a grievance challenging Jenkins’s suspension, and in the resulting decision a majority of the
91 Memorandum from Major League Baseball Office of the Commissioner to All Major
League Club Chief Executives, General Managers and Team Physicians Re: Club Drug
Education & Prevention Programs, dated July 2, 1981, at Tab C.
92 Id.
93 Memorandum from Bowie K. Kuhn to All Major League Clubs Re: Drug Program,
dated Feb. 9, 1984, at 2.
94 See Arbitration between Major League Baseball Players Ass’n and Major League
Baseball Player Relations Comm., Inc., Panel Decision No. 41 (Ferguson Jenkins), at 2
(Sept. 22, 1980) (“Panel Decision No. 41”).
95 Id. at 1-2 (quoting Letter from Commissioner Bowie K. Kuhn to Ferguson Jenkins,
dated Sept. 8, 1980).
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panel of arbitrators rescinded it, concluding that the suspension had been without “just cause”
(the owner’s representative on the arbitration panel dissented).96
The majority of the three-member arbitration panel concluded that it was unclear
whether the Commissioner had suspended Jenkins due to his arrest for possession of drugs or
due to his refusal to answer the Commissioner’s questions about the arrest. Neither basis,
however, provided “just cause” for the suspension, in the majority’s view. The majority
reasoned that “under controlling principles of United States and Canadian law – as well as
fundamental rules of fair play – Jenkins must be presumed innocent until he is proven guilty.”97
While there might be instances in which an employer would have the latitude to suspend an
employee before trial – such as an arrest for a violent crime or “where the repellant nature of the
charge, and the attendant publicity, cause realistic concerns about adverse effects on the
employer’s business” – in the majority’s view Jenkins’s arrest for possession of 1.75 ounces of
marijuana, 2.2 grams of hashish, and 3.0 grams of cocaine was not that type of “repellant”
charge.98
The majority also concluded that Jenkins’s refusal to answer the Commissioner’s
questions could not be “just cause” for the suspension because “the Commissioner was
compelling Jenkins to jeopardize his defense in court” and there was “no compelling reason why
the investigation into Jenkins’[s] activities could not have awaited the outcome of the trial.”99
The Jenkins decision represented the first substantial limitation on the
Commissioner’s power to impose discipline on major league players and to compel a player to
96 Id. at 12, 16-17.
97 Id. at 12.
98 Id. at 13.
99 Id. at 16-17.
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cooperate with an investigation, at least when criminal charges are pending against him.100 In his
announcement of this investigation, Commissioner Selig alluded to the decision when he said
that “an investigation of the illegal use of performance enhancing substances by a player or
players is an extraordinarily difficult undertaking. . . . Arbitrators have been reluctant to allow
compelled, potentially self-incriminating testimony and, unlike governmental law enforcement
officials, Major League Baseball lacks the authority to grant immunity.”101
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