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Players don’t have to talk to MLB in the Biogenesis probe. Thank Fergie Jenkins for that

Jul 11, 2013, 9:44 AM EDT

MLB Commissioner Bud Selig speaks during a news conference in New York

I noted yesterday the uncertainty surrounding potential double discipline of Biogenesis players. How the Melky Cabrera precedent may make it hard for MLB to give an enhanced suspension for those perceived to be lying to investigators. I also pondered whether simply not talking to investigators might serve as the basis. Ken Rosenthal, however, reminds us today that baseball has historically been unable to discipline players for clamming up:

In September 1980, former commissioner Bowie Kuhn suspended Ferguson Jenkins for declining to cooperate with baseball’s investigation after the pitcher was charged with possession of cocaine, hashish and marijuana in Toronto. An arbitrator lifted the suspension, according to the Associated Press, saying that “the commissioner was compelling Jenkins to jeopardize his defense in court.” Braun and others, by failing to answer questions, simply asserted their “Jenkins” rights.

There are some differences here, of course. Jenkins actually had charges pending against him while none of the Biogenesis players do.  But if baseball’s past arbitrator respected the idea of protecting players from self-incrimination (and that was in a case in a foreign country, not subject to the Fifth Amendment) one would think that the precedent would demand continued respect of Fifth Amendment rights, even if Major League Baseball isn’t the government.  And the way the Fifth Amendment works, one need not have an actual criminal case pending. Merely the potential of one must exist.

While it’s unlikely that any of the Biogenesis players will be prosecuted, it is a possibility. And that possibility may be enough to prevent Major League Baseball from imposing any added discipline for player’s failure to cooperate. Between that, the fact that most of these guys are facing a first offense, not a second, and given that the lying precedent is complicated by the Melky Precedent, how again is MLB supposed to suspend anyone for 100 games?

  1. DelawarePhilliesFan - Jul 11, 2013 at 9:54 AM

    I doubt MLB really will give out 100 games, and even if they do, I think they will do it more to make a statement rather then expect to see it upheld. When you think about it, they give out suspensions all the time they know aren’t going to stand, i.e. 5 games for Eric Hinske in L’Affaire Dodgers.

    100 Game suspension (if it happens), will mean 50 Games, and MLB knows

    • paperlions - Jul 11, 2013 at 1:45 PM

      Dang it! Now I have to agree with DPF.

      • DelawarePhilliesFan - Jul 11, 2013 at 1:55 PM

        I feel your pain 😉

  2. anotheryx - Jul 11, 2013 at 9:59 AM

    The whole world is in “not cheating, not trying” mode, so why should players be any different. You are still better off cheating and get caught than doing the “right” thing.

  3. mybrunoblog - Jul 11, 2013 at 10:01 AM

    It is a convoluted legal mess. That said if there is no threat of criminal charges being filed, I don’t see why an employer can’t compel an employee to answer questions relevant to their job performance. If you refuse to answer the
    questions (you may refuse) you are terminated from your employment. In most government employment this is usually the way it works.

    • hittfamily - Jul 11, 2013 at 10:19 AM

      Is MLB really Ryan Braun’s employer though? The Brewers contracted him, and pay his salary. The Brewers likely don’t want MLB asking him questions either. I work for a company that is contracted by the Federal Govt. If my boss demands I answer questions, I answer them. If the Treasury department demands I answer questions, I tell them to bring a subpoena. It all depends what the MLBPA has agreed to, and what Braun’s contract says, in my opinion.

      • heyblueyoustink - Jul 11, 2013 at 10:35 AM

        Don’t mess with Uncle Sam and his NSA. They’ll steal your lunch, assuming you have something good for lunch, which they will determine by analyzing data on your lunch eating habits.

      • mybrunoblog - Jul 11, 2013 at 10:47 AM

        You raise excellent points. It’s very murky legal territory. However the teams (Brewers,Yanks, whoever) are merely franchises under the MLB umbrella. I doubt even the brilliant legal sage Calcaterra himself couldn’t figure this one out.
        Is Solomon available on an hourly basis? We seek his wisdom.

    • bigharold - Jul 11, 2013 at 10:47 AM

      “.. if there is no threat of criminal charges being filed,..”

      While perhaps no threat there is the possibility. If as stated “…one need not have an actual criminal case pending. Merely the potential of one must exist.” is sufficient to allow players refuse to cooperate with MLB. You can’t, even through the auspices of the CBA, negotiate away a Constitutional right. I think where it gets fuzzy is can MLB increase the suspension for refusing to answer versus answering and denying PED involvement or answering with out right lies a misrepresenting the facts. Does it make a difference if I merely say nothing, or at what point does my denying become proactive obstruction? It doesn’t matter MLB will lose in arbitration, .. they always do.

      ” If you refuse to answer the questions … you are terminated .. In most government employment this is usually the way it works.”

      Perhaps, but again as we are all aware, MLB isn’t most jobs. While I’m aware that they exist within the corporation I work for I know of nobody that actually has a job that comes with a contract that specifies exact salary and length. And I’m a VP. How many jobs are there where the starting salary is closing in a a half a million a year?

      • mybrunoblog - Jul 11, 2013 at 10:53 AM

        Big Mr Harold you too raise good points. I’m only speaking about situations I’m familiar with. MLB is unique business. Wait. It’s not even a business it is a sport. The supreme court said so! Antitrust exemption.
        Ok I’m gonna drop back and punt now and return to regular baseball news. This stuff gives me a headache.

  4. hittfamily - Jul 11, 2013 at 10:08 AM

    I have a hard time believing any suspension will actaully take place. MLB might suspend them, but I think an arbitrator would over turn it. I believe the MLB that these guys are guilty, but MLBPA agreed to the most stringent drug testing in organized sports. If the test can’t catch them, then they aren’t using. At least that would be my argument. Is this the only case ever where the drug dealer was given immunity/leniency/a financial reward to turn in the drug users? Seems backasswards.

  5. sdelmonte - Jul 11, 2013 at 10:12 AM

    Yet again, I am grateful to have a former lawyer in charge of this site. I wish it were otherwise, but it can be useful.

    And at least it’s not the relentless drumbeat of off-season arrests and the Hernandez case that Florio is dealing with. Biogenesis is a bummer, but Pro Football Talk is downright depressing this week.

  6. blingslade - Jul 11, 2013 at 10:14 AM

    I don’t think many people care how many games the players are suspended, it’s way less than a single season anyway.

    What a lot of fans care about is who got caught, what drug were they using, and any other insight into the life of a steroid cheat. It’s Like the National Enquirer of baseball cheats – enquiring minds want to know!!!

  7. brewcrewfan54 - Jul 11, 2013 at 10:17 AM

    If they do give Braun or Rodriguez 100 games and it sticks, (which it wont) does that mean they both are getting 2 strikes in the JDA and a next one is the lifetime ban or is it just going to be considered their first strike with somehow MLb going against their own suspension guidlines? I should know this by now but I guess I’m just sick of this story until something actually happens.

  8. unclemosesgreen - Jul 11, 2013 at 10:22 AM

    CC, I don’t think you can link Fergie to this case – just as the Fifth Amendment right against self-incrimination didn’t apply to a case in Toronto – it shouldn’t apply to these interviews with regard to the possible (but quite unlikely) possibility of future criminal charges.

    Also there’s no reason for MLB to worry about the possibility of 50 games worth of a 100 game suspension getting rescinded. Who cares?

  9. 13arod - Jul 11, 2013 at 10:38 AM

    In the rulebook it says they cant suspend a player without a failed drug test so i dont know why they might suspend the players that are part of the scandel

    • uwsptke - Jul 11, 2013 at 11:04 AM

      The Joint Drug Agreement goes beyond a failed drug test. Otherwise this whole thing would be irrelevant. The JDA allows for suspensions if MLB can prove a player purchased or had a banned substance in his possession. Where it gets shady is that MLB is basically purchasing evidence and testimonies. And Braun probably has the best argument against this since his name doesn’t appear next to specific drugs purchased, just a dollar amount (which both he, his lawyers, and Bosch have said were for consulting fees for work he did on Braun’s appeal). Other players like ARod have specific items purchased listed next to their names.

  10. cur68 - Jul 11, 2013 at 10:44 AM

    I’m pretty sick of Biogenisis, MLB’s “confidentiality” (rather their lack thereof), and the whole boiling of athletes implicated. How this witch hunt serves the best interests of baseball is beyond me. What a load of crap.

    • brewcrewfan54 - Jul 11, 2013 at 11:04 AM

      I agree. MLB has had a real problem with their confidentiality going back as far back as the Mitchell report, maybe longer. Maybe they should get their house in order before they start trying to suspend the league.

      • cur68 - Jul 11, 2013 at 11:26 AM

        No shit. What they SHOULD do is hunt down who ever is leaking what is supposed to be confidential information and fire their asses. Chances are, though that the leaks are at Selig’s behest. He does it to embarrass players and create a media driven public out cry for whomever he’s gunning for. Selig’s an ass like that.

      • brewcrewfan54 - Jul 11, 2013 at 12:01 PM

        I was thinking the same thing about MLB purposely leaking information. At the very least they don’t seem to care because it keeps happening. I’m pretty sure its intentional leaking though.

  11. ezwriter69 - Jul 11, 2013 at 6:06 PM

    There should be ZERO tolerance. Don’t use PED’s, or you don’t play in our league, just that simple. NO one, including Braun, takes it by accident. No second chances, no obfuscation, no waffle room: Use PED’s and you don’t play in our league, period, ever, end of story, end of issue. This is what happens when Mom and Dad won’t take a stand… kids turn out to be total brats who respect no one and nothing.

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