Ferguson Jenkins drug charge: why arbitrator upset suspension

No matter how much an administrator may deplore the growth of drug problems in his sport, when it comes to imposing penalties he must still follow the rules of law, uphold the principles of individual rights, and consider the prevailing attitudes of society.

That's essentially what an independent arbitrator told Baseball Commissioner Bowie Kuhn last week in overturning the latter's suspension of Ferguson Jenkins.

Jenkins, of course, is the veteran Texas pitcher who was arrested in Toronto Aug. 25 on charges of possession of small amounts of cocaine, hashish, and marijuana. Under Canadian law he did not enter a plea, and he is free pending a Dec. 18 trial. TKuhn launched his own investigation and summoned Jenkins to a hearing. When the pitcher, following the advice of counsel, declined to answer questions, the commissioner suspended him with pay on Sept. 8 for the balance of the season. Jenkins filed a grievance, and the arbitrator, University of Kansas law professor Raymond Goetz, overturned the suspension.

Kuhn immediately issued a statement blasting the arbitrator's decision as ". . . a grave disservice . . . to concerned parents and citizens everywhere." He was also sharply critical of it in an interview the next day with the Monitor.

"Baseball is oncerned about the way it presents itself to the public," he said. "Our policy is to present a wholesome image, and I think we largely succeed. Much in expected of baseball.

"I feel very strongly about this. These alhletes are paid $150,000 a year on the average. With that money goes a certain responsibility. They have to curb some appetites.

"This is a family sport, and we're pround of it. Kids idolize these players and make heroes out of them."

The commissioner, citing numerous legal procedents and authorities as well as provisions of the Major League Agreement and the United Player's Contract, said he had full authority to investigate possibel illegal use or possession fo drugs , to summon players to appear before him, and to takek disciplinary action if they failed to cooperate.

Juhn further indicated that he felt it was both his right and his duty to seek information from Jenkins -- and he vowed that his inquiries would continue.

"I will press the investigation to see if there is any problem on the Texas club I should know about," he said. "If one player allegedly possessed drugs, others may be involved. And where did it come from?"

Goetz was prevented by the rules of arbitration from discussing his decision, but an outline of his opinion, provided by Marvin Miller, executive director of the Major League Players Association, showed that the arbitrator felt Kuhn had gone to far.

As Miller pointed out, no one questioned the authority of the commissioner to discipline players who refuse to cooperate in an investigation, but the burden of proof is on the disciplining party to show just cause for the penalty imposed. He said the arbitrator concluded there was not just cause in this case , because, among other things:

1. Any person charged with an offense must be presumed innocent until convicted.

2. The offense for which Jenkins was arrested is one of the least serious under Canadian law, comparable to a misdemeanor in the United States. Conviction of simple possession of such small quantities of these drugs for a first offender could well result in a conditional discharge that would cause the conviction never even to be registered.

3. In the absece of some evidence to the contrary, it cannot be assumed that, under present-day attitudes, allowing Jenkins to appear in uniform pending his trial would have a substantial adverse effect on public support of the game.

Another thing hurting Kuhn's case was that he had not been present at the session with Jenkins, and apparently did not receive a complete report from his staff members who were there. According to Miller, Jenkins's counsel spent most of the time explaining Canadian law and detailing the reasons for advising his client not to answer questions, but all this was omitted from the written report given to the commissioner.

In view of such factors, the arbitrator ruled that Jenkins's refusal to cooperate with the investigation did not provide just cause for suspension. He said the questions asked would have required Jenkins to reveal every detail of his planned defense in court, and also that they seemed designed to let the commissioner make a predetermination of Jenkins's guilt or innocence.

One area of disagreement concerned the severity of the penalty. Kuhn contended that since he had only taken Jenkins out of uniform, allowing him to receive full pay and benefits, it was not really that much of a punishment -- "a sensible, middle-of-the- road decision," he called it. But Texas was battling for second place, while Jenkins is in the latter stages of a distinguished career in which he has won more than 250 games, and in which every start he misses could have a bearing on his final record, his eventual election to the Hall of Fame, or both. The player's contention, therefore, was that suspension itself was a severe penalty -- and obviously Goetz agreed.

Kuhn has also voiced sharp disagreement with Goetz as to society's feelings about baseball's growing drug problem.

"I believe vast segments of society are outraged that some athletes do not show a greater sense of responsibility to a public that idolizes and imitates them," he said.

But Goetz said, in effect, that it was up to the commissioner to prove such widespread outrage, and that in the absence of such proof "there was no complelling reason why the commissioner's investigation could not await the outcome of Jenkins's trial."