Chapter[ I. Scope of this Investigation ]
Section[ Scope of this Investigation ]
I. Scope of this Investigation
The powers of the Commissioner of Baseball are established by contract. The
Major League Constitution is the governing agreement among the thirty major league clubs,
under which the powers of the Commissioner are enumerated. Article II, section 2 of that
agreement grants the Commissioner the power:
. . . [t]o investigate . . . any act, transaction or practice charged, alleged or
suspected to be not in the best interests of the national game of Baseball,
with authority to summon persons and to order the production of
documents and in case of refusal to appear or produce, impose such
penalties as are hereinafter provided.
The Commissioner also is empowered “ . . . [t]o determine, after investigation, what preventive,
remedial or punitive action is appropriate” against either major league clubs or individuals.14
The Commissioner’s “best interests” powers do not extend “to any matter relating to the process
of collective bargaining” between the clubs and the Major League Baseball Players Association.
Because the Commissioner’s powers are granted by contract, only persons who
are subject to the provisions of that agreement – those employed in Major League Baseball and
affiliated organizations (such as clubs in the affiliated minor leagues) – are subject to the
Commissioner’s powers. Unlike a governmental body, therefore, the Commissioner does not
14 Major League Const., Art. II, §§ 2(b), (c) (2003). The “best interests of baseball”
provision is essentially unchanged from the provision under which the powers were granted to
the first Commissioner of Baseball, Judge Kenesaw Mountain Landis. See New Major League
Agreement, Art. I, § 2 (1921). For players, the permissible discipline includes temporary or
permanent ineligibility, or a fine. For clubs, permissible penalties include exclusion from major
league meetings, a fine of up to $2 million or denial of certain player selection rights. For club
officials, the Commissioner may levy a fine of up to $500,000. In all cases, the Commissioner
also can take “such other actions as the Commissioner may deem appropriate.” Major League
Const., Art. II, § 3.
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have the power to compel testimony or the production of relevant evidence from third parties,
including former players.15
Acting pursuant to his enumerated powers, on March 30, 2006, Commissioner
Selig appointed me to conduct an investigation:
. . . to determine, as a factual matter, whether any Major League players
associated with [the Bay Area Laboratory Co-Operative] or otherwise
used steroids or other illegal performance enhancing substances at any
point after the substances were banned by the 2002-2006 collective
bargaining agreement.16
The Commissioner said that he was prompted to ask me to conduct this investigation by the
publication of the book Game of Shadows, which “amplified” allegations regarding the
relationship between certain players and Greg Anderson, a personal trainer, and with BALCO, an
enterprise whose principals were convicted of supplying illegal steroids and other substances to
professional athletes in a number of sports.17
The Commissioner also acknowledged that conduct “before the effective date of
the 2002 Basic Agreement” could be relevant, and he authorized me, if necessary, “to expand the
investigation and to follow the evidence wherever it may lead.”18 I welcomed this latitude as
necessary to ensure that my findings were reached in the proper context and that I would not be
required to request additional investigative authority from the Commissioner once the
investigation began.19
15 The Players Association is only the bargaining representative for active major league
players.
16 Press Release, Major League Baseball Office of the Commissioner, Statement of
Commissioner Allan H. Selig (Mar. 30, 2006).
17 Id.
18 Id.
19 My investigation did not include an examination of the use of amphetamines by players
in Major League Baseball. The allegedly widespread use of amphetamines in baseball, rumored
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As stated above, the Commissioner’s authority under the “best interests of
baseball” provision does not apply to any matter “related to the process of collective bargaining.”
In addition, as a party to the collective bargaining agreement between the Players Association
and the thirty major league clubs, the Commissioner is bound by the terms of that agreement. As
will be discussed further below, the subject of drug testing for any substance has been
determined by baseball arbitrators to be a mandatory subject of collective bargaining. Since the
2002 Basic Agreement, the major league clubs and the Players Association have been parties to
Major League Baseball’s Joint Drug Prevention and Treatment Program, which contains detailed
provisions that affect the Commissioner’s ability to act in some instances. Other provisions of
the Basic Agreement also are implicated by an investigation of this nature, including that the
Players Association receive prior notice of any request for an interview of a current major league
player.
for decades, is a problem distinct from more recent allegations that players have used steroids
and other substances with anabolic or similar effects to gain an unfair competitive advantage.
I was asked to examine the latter question, and I am comfortable that a thorough examination did
not require me to look into the additional problems posed by amphetamines use, serious as those
problems might be. Moreover, an expansion of the scope of this investigation to include
amphetamines use inevitably would have increased the already significant time that was needed
to complete this investigation and diluted its focus, which I believe would have hampered
whatever improvements might be achieved as a result of this report.
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