Fact: Virtually all collective bargaining agreements between labor unions and employers stipulate that unionized employees can be disciplined or fired only for just cause, and, only after a hearing before a neutral arbitrator.
Fact: In MLB’s investigation of Biogenesis and its association with MLB players, fourteen players were assessed suspensions. Twelve players accepted 50-game suspensions while Ryan Braun accepted 65. However, Alex Rodriguez, who was among the fourteen, said he planned to appeal and go to arbitration.
Fact: According to the MLB/MLBPA Collective Bargaining Agreement (CBA) and the Joint Drug Agreement (JDA), discipline must meet a “just cause” standard.
Fact: The CBA and the JDA allows for an arbitration process that guarantees each player has due process rights that are accompanied by strict confidentiality provisions.
In U.S. labor history the unionization of certain portions of the workforce secured certain and specific rights for those workers. One of these rights is the concept of just cause. Just cause is included in all union contracts as a specific form of job security. An employer of a unionized workforce may discipline, including suspension or termination, employees for behavior that is detrimental to the employer conducting an ongoing business. But, because of the protection of the union any trade unionist employee who is assessed disciplinary action can appeal, and, then, that employer must prove just cause before an arbitrator to sustain whatever discipline was assessed. In these cases, it is worth noting that the employer has the burden of proof.
During an arbitration hearing an arbitrator generally asks whether the employee’s wrongdoing was proven by the employer and then whether the method of discipline should be upheld or modified. In 1966, an arbitrator, Professor Carroll Daugherty, expanded these principles into seven tests for just cause. These concepts are, as a rule, frequently used by arbitrators when deciding discipline cases.
Daugherty’s Seven Tests
|1||Was the employee forewarned of the consequences of his or her actions?|
|2||Are the employer’s rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee?|
|3||Was an effort made before discipline or discharge to determine whether the employee was guilty as charged?|
|4||Was the investigation conducted fairly and objectively?|
|5||Did the employer obtain substantial evidence of the employee’s guilt?|
|6||Were the rules applied fairly and without discrimination?|
|7||Was the degree of discipline reasonably related to the seriousness of the employee’s offense and the employee’s past record?|
Essentially, what unionism brought to the table was that without just cause, that was provable by due process, then no employee could be disciplined in any manner, including termination or loss of job. Due process simply means the worker has a right of an impartial and fair hearing regarding employer’s decisions and that certain procedures and certain steps must be adhered to for an arbitrator to assess the situation in a fair and just manner and then use that information to render a final decision about the employer’s actions.
Back around the middle of July of this year, uber-agent Scott Boras, himself a law school graduate and former practicing lawyer, said that certain tactics, such as the leaking of names associated with Major League Baseball’s investigation into Biogenesis, violated the collective bargaining agreement in MLB. Specifically, he said that “What we have is a failure to follow a collective bargaining agreement… This is why we have due process… Yet we have a dynamic in place that is operating outside the process of due process, where we are announcing things before we have a factual presentation… The joint drug agreement accounts for a hearing, a presentation of facts and we have announcements of suspensions and people involved without due process.”
Michael Weiner, MLBPA executive director, when asked about the leaks said, “Repeated leaks threaten to harm the integrity (of the drug agreement and that the leaks) call into question the required level of confidentiality needed to operate a successful prevention program… The players want a clean game and they demand a testing program that is not only the toughest in professional sports, but one that guarantees each player due process rights accompanied by strict confidentiality provisions.”
On August 5, Alex Rodríguez was suspended by MLB for 211 games for allegedly using PEDs on multiple occasions; for conducting behavior that was aimed at obstructing MLB investigation into Biogenesis and possibly for conspiring to lead other baseball players to use the services of Biogenesis. Rodriguez said he would appeal the suspension, and, since then, his representatives have filed an appeal with MLB on his behalf.
When the union was first approached about drug testing, Marvin Miller, then the executive director of the union, said “No” and that it would never happen on his watch. Donald Fehr who eventually followed Miller essentially followed in Miller’s path in most things that involved the union as well as Miller’s stance on drug testing. In fact, in 1986, when Donald Fehr was a rookie executive director for the MLBPA, he was a key person with a situation involving players that got caught in a drug sting concerning an international drug cartel that was vending illegal drugs, specifically cocaine. Peter Ueberroth was the commissioner of MLB at the time and he went out of his way to take the opportunity to come down hard on the players that were involved in the sting by law enforcement officials, as buyers and users of these illegal drugs. He wanted to use the players, who had admitted their involvement to the judicial system to avoid prosecution, as examples that drug usage in Baseball would not be tolerated, so he suspended the players for one year from playing in MLB. However, Ueberroth also wanted to do something more than just punish the players. He wanted to establish a comprehensive drug-testing program that had penalties that would deter illegal drug use in Baseball. So, he offered the suspended players a deal. He said if the players would submit to random drug testing, perform one hundred hours of community service and donate up to 10% of their salaries to community drug programs he would waive the suspensions.
All the players’ involved, knowing they were about to be subject to long term suspensions, willingly agreed to Ueberroth’s plan, and, in this process, Ueberroth thought he had resolved a major scandal and finally established a well thought out and formulated program that could keep illegal drugs out of baseball. Ueberroth was wrong because a fledging executive director, Donald Fehr, interceded on the player’s behalf and came away with no testing. And, with this action, Fehr categorically established a precedent and the design of the drug policy that would be the lynchpin of the union’s argument against drug testing in MLB for many years to come. In fact, that stance, and the ensuing drug testing policy for MLB that was in effect, stood until 2002 when Fehr in collective bargaining finally relented, due to outside pressures, to allow limited anonymous drug testing in 2003. Which, incidentally, was the occasion of Alex Rodríguez’ first failed test that came out only when the test results were obtained because union leadership, including Fehr, did not follow agreed upon procedure.
The listing of a segment of MLB players who were tested back in 2003, and the results of all those tests, were supposed to be confidential and used only as a means to determine if testing should be implemented in MLB and then those results were to be destroyed. The fact was, that after the sample size was tested, and if a certain percentage (5%) came back positive, then MLB would institute a random testing procedure with punitive consequences for failure but all the records of those tests were to be kept private and then eradicated from existence. But Gene Orza, the then Associate General Counsel of the Players Association in 2004, and, Donald Fehr, the Marvin Miller wanna-be, and the titular head of the Players Association, kept the lists, in hard copy, so they could continually go through the names and testing procedures with the purpose being to attempt to get under the threshold that tested positive and thereby end the testing of the players. It is through the egotistical and ill intentioned, as well as greedy, actions of these two men, in particular, that the list that contained Rodriguez’ name was even in existence.
While it may not be as simple as saying the players blindly followed Fehr’s lead, his past successes in negotiations with MLB does explain why the union membership tacitly were for so long behind Fehr, and his union counsel, Gene Orza, regarding the union and their immutable anti-testing position. But as Michael Weiner assumed the leadership role of the players union the union membership, and, thus the union’s, position on drugs and drug cheats evolved and changed. The MLBPA has become staunchly anti-drugs, with the membership beginning to speak out against players who use drugs as they (1) see those users cheating other people out of job opportunities and (2) they do not want guilty people being protected to the detriment of the overall membership. Players, or the rank and file, are listening to Weiner when he says that the union belongs to them. Wiener has specifically and concretely told the membership that he will use all available resources to give the players all the pros and cons involved in any situation that demands action but that in the end it is what they say that counts and determines what he will do. And what they have said is what led Weiner, on July 17, to tell the New York Daily News, “… if we have a case where there really is overwhelming evidence, that a player committed a violation of the program, our fight is going to be that they make a deal. We’re not interested in having players with overwhelming evidence that they violated the (drug) program out there. Most of the players aren’t interested in that. We’d like to have a clean program.” And, since Biogenesis has placed drugs, especially PEDs back into MLB’s forefront, players such as Skip Schumaker, Matt Holliday, Zack Greinke, John Lackey and Max Scherzer have spoken out in words that prior to this point were almost never said aloud or for the record.
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