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— Where BTF's Members Investigate the Grand Old Game
Friday, March 18, 2005
The Steroid Hearing
What Selig, Fehr, and Manfred Failed to Say
For most people the highlight of yesterday’s hearing before the House Government Reform Committee was mark McGwire’s non-denial, or the heart wrenching stories of the parents who’s sons committed suicide, or even the perceived weak penalties of baseball’s system and the threat of congressional action to bolster the testing regimen. To me, however, it was the lack of clarity and preparation by Commissioner Selig, Robert Manfred, and Donald Fehr. Those three were the most important witnesses of the day and without ever fully articulating their positions they were bullied and battered.
Having testified before a Senate committee and as a labor lawyer I was very disappointed that neither management nor the union was able to explain the history and the purpose of the bilateral process that led to the current testing system.
I understand that practitioners very frequently take a baseline understanding of their field for granted and I believe that is exactly what happened yesterday with Manfred and Fehr. Both practice labor law in a very insular arena. Unlike many union representatives Fehr never has to train his members and stewards on how to file a grievance on discipline or contract interpretation. His experience, at least while at the MLBPA has been to handle these things himself or with others who already know the basics. There is never a need to explain the basics to Manfred, across the table, or even an arbitrator deciding a disciplinary case. However, with Congress, a basic training is necessary to provide full clarity of both parties’ positions. And, in this case, it should be a shared position.
Without judging whether or not the policy is strong enough, one thing is clear: the policy and process to reach the policy was not properly explained or defended.
The most important issue that was left unexplained was the concept of progressive discipline. Rep. Christopher Shays (R-CT) was particularly concerned about this issue asking why players would get four outs prior to being expelled from baseball. While Fehr did state very clearly that progressive discipline is the union’s position, he did not explain the concept, nor did he explain why has been accepted in labor law for so long. Progressive discipline is based upon the concept that there are very few crimes that allow a death sentence. In common practice there is only first-degree murder, although treason, desertion, and other crimes against the military and national interest can also result in a death penalty sentence. In the workplace the same concept exists. There are some offenses that result in summary dismissal. Those offenses vary from workplace to workplace, but violence in the workplace is generally accepted as grounds for dismissal in all workplaces. So is theft. But, the discipline should fit both the nature and seriousness of the offense. When an offense does not warrant dismissal, progressive discipline benefits both the employee and the employer. Why would an employer desire to recruit a new employee, train that employee, and go allow that employee through the learning curve of the workplace if the disciplined employee is capable of rehabilitation and already has the skills, ability, and knowledge to perform the job? Surely once the employee has shown productivity it benefits both parties to penalize the employee with an appropriate penalty so that the employee can learn from his mistake and so that other employees can learn from it as well.
Another topic that created a left a lot unanswered was the question of criminal penalties for breaking the law. Rep. Elijah Cummings (D-MD) raised the issue that many in his district would be very happy if all they received for a drug conviction was a 10-day or 15-day suspension from employment. Neither Fehr nor Manfred explained that baseball did not have the authority to impose criminal sanctions. The internal baseball penalties are only administrative. Players are still subject to criminal prosecution for possession, use, and distribution like any other person in the U.S. But, just like other employers, testing positive in a baseball drug test does not lead the employer to turn over the medical records to prosecutors. However, as Selig stated, if a player were distributing drugs in the locker room, that information would be passed along to authorities. Fehr and Manfred also failed to explain that in order to sustain a disciplinary penalty the employer also has to prove a causal nexus between the offense and the employee’s job. While that is true for steroids, it is not true for recreational drugs. Only safety and drug enforcement positions really have a causal nexus between the employee’s job and recreational drug use. You do not want the pilot of your airplane using drugs, but do you really care if the cook at your diner smoked marijuana? If it doesn’t directly relate to the employee’s job it should not result in discipline.
Bud Selig was thrown a softball on the gambling question, but failed on that issue as well. Rob Neyer wrote a great piece on this topic some time ago and said it better than I could. Most importantly the belief is that steroids enhance a player’s ability to play well. This means that he is trying to win. Gambling, though, throws the entire competition into doubt, because a player does not bet on his team to win ever game, furthermore, even if he did bet to win every game, debts to bookmakers would bring at least the appearance of a conflict of interest if not an actual conflict of interest.
Another topic that was mangled by the panel was the fact that this is a mandatory subject of bargaining. That means that despite what the politicos would desire, baseball cannot unilaterally change the work rules without negotiating with the union. Such a change would result in a violation of the law: an unfair labor practice. Several of the Committee members basically seemed to be asking baseball to break the law.
Finally, there is the issue of a trickle down to high school athletes. Nobody explained that testing Major League Baseball players and applying more stringent penalties will not change usage in high school sports. Olympic athletes have the toughest testing rules, they are role models, yet that has had no impact. Neither have the testing rules in football. Only testing high school athletes will change the usage rate in high schools. Congress can do that through an unfunded mandate on the states, something that will no doubt eliminate high school sports entirely.
The final panel, which had the opportunity to explain the current policy with the most details and context, failed to accomplish its goals. Whether the panelists were unprepared or not does not seem in question. They were not. All of the questions could have been anticipated and should have been. Their staffs should have helped them develop reasoned, rational responses, so that they wouldn’t have been beaten up as badly as they were.
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