What is due diligence? What is zero tolerance? How do these impact employee morale? How do these concepts link together? I thought about these questions and several more when the Houston Astros announced they had traded for closer Roberto Osuna earlier last week. The primary reason for these questions was that Osuna came off a 75-game suspension by Major League Baseball (MLB) for violation of its domestic abuse policy. It involved an incident for assault, for which Osuna pleaded not guilty to in a criminal case in Ontario.

What is Zero Tolerance? 

Overlaid with Osuna and his suspension were the Astros, who have (or perhaps more appropriately had) a zero-tolerance policy for domestic abuse. David Barron, writing in the Houston Chronicle, said the club’s response was that the zero-tolerance policy did not apply to Osuna because the alleged assault occurred before he joined the Astros and that Osuna would benefit from “great examples of character in our existing clubhouse that we believe will help him and his family establish a fresh start.”

This final sentence brings up another reason for such sanctions, rehabilitation. Should a person who commits a crime or unethical action be forever banned from practicing their craft? In his article Barron quoted Cindy Southworth, an executive vice president of the National Network to End Domestic Violence, who posed the following question “How do you balance redemption and behavioral change with holding people accountable?” She then answered her own question with “It’s messy. It’s not straightforward. But you can do both.” I would only add (parenthetically) that if your right arm is a cannon, you will probably get such a chance.

In the anti-corruption compliance world, one incident of unethical behavior would be seen as a red flag for similar behavior in the future. It might be enough to prevent such a person or entity from passing a due diligence background screening. On the other hand, a person convicted or found guilty of bribery and corruption might well serve their time, become rehabilitated and use those experiences to help others avoid the scourge of corruption going forward. 

What is Due Diligence?

If there is one concept that every compliance practitioner is familiar with it is due diligence. But what is due diligence? Is it a formal record check to see if a person is on the despicable persons list, have committed criminal acts or are at least alleged to have violated laws. Is due diligence determining whether someone or some other organization meets the minimum standards you set for yourself or your organization (See: zero tolerance, above)? Gonzales said, the “Astros say they truly don’t know the details about what took place between Osuna and the alleged victim.”

The Astros, in a statement released Sunday, said, “Our decision to acquire Roberto was based on the entirety of the information that we gathered during our extensive evaluation. That included as much information as we could gather about the specific incident and the charges that were filed but it also included as much information as we could gather about his actions before and after the incident, as well as his personal reputation among his former teammates and coaches. The information regarding this specific incident weighed heavily on our decision but when evaluating the entirety of the information, we felt that Roberto deserved a second chance.” Of course the Astros did not say what that information was or what the due diligence entailed.

These questions around the due diligence were further clouded in an article by Alden Gonzales, writing in an ESPN.com piece entitled “Roberto Osuna addresses Astros in closed-door meeting”, where he quoted Astros General Manager, A.J. Hinch, for the following, ““We really don’t know what to think or what to say or what to do and how to absorb all of this,” Hinch said. “But it’s right in front of us, and we will do our best as a team and as a family and a group to help him navigate through this, to help ourselves to navigate through this.””

What is employee morale?

Osuna is under charges in the province of Ontario for his domestic assault, to which he has pled not guilty. What will be the effect on all of this be in the Astros clubhouse, given the stances by several players on domestic abuse? Barron noted in his article that Astros pitchers Justin Verlander and Lance McCullers had previously made statements “against players who commit domestic violence.” Verlander said after the trade was announced “Obviously I’ve said some pretty inflammatory things about stuff like this in the past and I stand by my words. But I think in an ongoing case as is this one, we’ll see what happens.” Gonzales reported that Collin McHugh, the team’s representative with the Major League Baseball Players Association, was a bit more direct saying, “I don’t think anybody’s comfortable with the situation,” McHugh later told the media. “I don’t think anybody in baseball is comfortable with this situation. There’s a lot of ongoing things; there’s things that are happening. Nobody in this clubhouse is going to condone anything that’s happened off the field.”

As for the Astros, it is pretty clear that the right arm of Osuna is the only currency the club is concerned about as it mounts a defense of its 2017 World Series championship. Yet in the court of public opinion, the Astros have certainly dropped a few notches. ESPN’s Buster Olney said of the trade, “Surprising…disappointing…shocking….appalling.” Yahoo! Sports’ writer Jeff Passan was even more direct when he said the Astros had engaged in “moral bankruptcy by acquiring a player of tainted character, because, in this case, he can get outs in the ninth inning.”

Perhaps the final word comes from the New York Times Extra Bases columnist Tyler Kepner who wrote about the trade and the two players involved, the former Astro Ken Giles and the new Astro Roberto Osuna, “the choice of Osuna over Giles makes it seem as if the Astros’ real zero-tolerance policy is for Giles’s misdeeds, [Giles cursed his manager] not Osuna’s — a disturbing message from a team that should have found a better option.” Indeed.

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, 2018