Biogenesis and the (Bad) Boys of Summer

August 16, 2013 - by: David Kim 0 COMMENTS

For some people, summer evokes thoughts of sunshine and long walks on the beach with sand under their bare feet (sounds like the setting of a Nicholas Sparks novel … or so I’m told). For me, I think of baseball. As an annual subscriber to MLB Extra Innings, I think of the plethora of games waiting for me when I get home from work, especially those of my hometown Red Sox. I constantly check my fantasy baseball team to see what moves I can make to catapult me up the standings. When I’m working late, the text from my wife doesn’t just ask when I’m coming home, but also provides me with spirit-lifting updates: “McCutchen just hit a three-run bomb.” Pause. Fist pump. Back to work.

But this summer, my fellow baseball fans and I aren’t the only ones thinking and talking about America’s pastime. Biogenesis has dominated the headlines, culminating in the suspension of 13 major and minor league baseball players this month, in addition to last month’s suspension of Ryan Braun. Interestingly, none of these players actually tested positive for performance enhancing drugs (except for Braun back in 2011, who successfully appealed based on a technicality, and has now been introduced to my friend karma). A failed test would establish per se grounds for a 50-game suspension pursuant to the Joint Drug Agreement (JDA) between Major League Baseball and the Player’s Union.

The JDA, however, also provides that the commissioner of baseball may discipline a player for “just cause,” in essence providing that strong enough circumstantial evidence can be sufficient to justify suspension. While the majority of baseball players were suspended 50 games pursuant to the “just cause” provision under the JDA, Braun (65 games) and Alex Rodriguez (211 games) were given additional suspensions. Under the Basic Agreement between the union and MLB, players may be disciplined for “conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.”  (link to the JDA and Basic Agreement here if you’ve got some down time).

MLB is clearly taking all measures in its power to “clean up the game.” But while the organization is the most visible employer interested in ensuring a drug-free environment in its workplace, it is not the only one. Employers of all kinds have either implemented, or are considering implementing, workplace drug-testing policies, protocols, and procedures. However, as drug-testing laws in each state differ dramatically, employers must ensure that they are in compliance with applicable law. Each state has its own laws about who can be tested and under what circumstances. For example, some states permit random, or suspicionless, testing. Other states permit testing only if there is a reasonable suspicion of drug use, and still others permit testing only in specific safety-related situations. State laws also differ with respect to how the testing may be conducted, the procedures required for any testing entity, and what specific type of prior notice, if any, is required to be given to an employee or applicant.

In addition, employers with unionized workforces should be prepared to negotiate all aspects of its drug-testing policy, which the National Labor Relations Board has determined is a mandatory subject of bargaining. Just don’t expect to be dealing with a union highly motivated to clean up its workplace like the MLB Player’s Union or employees who will quietly accept discipline based on circumstantial evidence. Well, except for A-Rod, who we all know is the only player appealing his suspension. Of course, A-Rod has well over 25 million reasons to appeal (base salary of $25M in 2014, not including incentives and bonuses).  And I have no reason to believe A-Rod’s appeal, or the issue of performance enhancing drugs in baseball, will be resolved anytime soon. Play ball.

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