Most people who have a modicum of interest in baseball
now know that Ryan Braun was successful in the appeal of his 50 game suspension
by Major League Baseball (MLB) for testing positive for performance enhancing
drugs; i.e.: elevated levels of testosterone. The suspension had been levied
based upon tests taken late last season, at the conclusion of which Braun was
awarded the National League's Most Valuable Player (MVP) award for the most
sterling season, with a Batting Average of .332 with 33 home runs and 111 RBIs
while leading the Brewers to the National League (NL) Central title. Although
the entire process is required to be confidential under the MLB collective
bargaining agreement with the players' union, both the test results and notice
of Braun's appeal were leaked to the press by person or persons unknown.
Braun won his award because the sample of his urine that
was tested was not handled in compliance with the MLB/Players' Union agreed
upon testing protocol. The worker who took the sample did not deliver it to
FedEx on the same day the sample was taken from Braun because he said it was
Friday night, after 8 PM and all the FedEx offices were closed. (A quick note
here that anyone who has ever been an associate at a law firm knows
just how bogus that excuse is as there is ALWAYS a FedEx office open. My
suggestion is next time to try the airport.) Instead the employee of the drug
testing company took the sample home and kept it in his refrigerator over the
weekend. This failure to deliver the sample, as required by the agreed upon
testing protocol, was enough to allow a tripartite panel of arbitrators to
overturn the suspension by a 2-1 vote.
As equally important as it is to have a written process
in place, it is as important to follow this process. In the realm of individual
rights this is called procedural fairness and it is one of the things that will
bring credibility to your Compliance Program. Following an agreed upon process
is called the Fair Process Doctrine and this Doctrine generally recognizes that
there are fair procedures, not arbitrary ones, in a process involving rights.
Considerable research has shown that people are more willing to accept
negative, unfavorable, and non-preferred outcomes when they are arrived at by
processes and procedures that are perceived as fair. Adhering to the Fair
Process Doctrine in two areas of your Compliance Program is critical for you,
as a compliance specialist, or for your Compliance Department to have
credibility with the rest of the workforce.
This is particularly true in the realm of discipline in
your compliance program. If you define a process that is to be followed by all
employees when an event occurs, then the company must also follow its
procedures in the investigation and administration of discipline. Discipline
must not only be administered fairly but it must be administered uniformly
across the company for the violation of any compliance policy. Simply put if
you are going to fire employees in South America for lying on their expense
reports, you have to fire them in North America for the same offense. It cannot
matter that the North American employee is a friend of yours or worse yet a
'high producer'. Failure to administer discipline uniformly will destroy any
vestige of credibility that you may have developed.
In addition to the area of discipline, which may be
administered after the completion of any compliance investigation, you must
also place compliance firmly as a part of ongoing employee evaluations and
promotions. If your company is seen to advance and only reward employees who
achieve their numbers by whatever means necessary, other employees will
certainly take note and it will be understood what management evaluates, and rewards,
employees upon this. I have often heard the (anecdotal) tale about some Far
East Region Manager which goes along the following lines "If I violate the Code
of Conduct I may or may not get caught. If I get caught I may or may not be
disciplined. If I miss my numbers for two quarters, I will be fired". If this
is what other employees believe about how they are evaluated and the basis for
promotion, you have lost the compliance battle.
So, just as Lin-sanity can inform your compliance
program, the Ryan Braun suspension and reversal can also inform your compliance
program. To build a solid compliance program, trust by your employees that they
will be treated fairly is required. Companies can build trust by living their
stated values as set out in their company Code of Conduct and compliance
program. As reported in the New York Times (NYT), MLB has come "out firing
against Braun, with Rob Manfred, the executive vice president for labor
relations, saying in a statement that the league "vehemently disagrees" with"
the arbitration ruling. If MLB wants to have any credibility it must follow its
own agreed upon testing procedures. So quit whining, if you set up a procedure,
you had best follow it. The Procedural Fairness Doctrine requires nothing less.
Visit the FCPA Compliance and Ethics Blog,
hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and
other forms of risk management for a worldwide energy practice, tax issues
faced by multi-national US companies, insurance coverage issues and protection
of trade secrets.
This publication contains general information
only and is based on the experiences and research of the author. The author is
not, by means of this publication, rendering business, legal advice, or other
professional advice or services. This publication is not a substitute for such
legal advice or services, nor should it be used as a basis for any decision or
action that may affect your business. Before making any decision or taking any
action that may affect your business, you should consult a qualified legal advisor.
The author, his affiliates, and related entities shall not be responsible for
any loss sustained by any person or entity that relies on this publication. The
Author gives his permission to link, post, distribute, or reference this
article for any lawful purpose, provided attribution is made to the author. The
author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2012
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