A few thoughts on Ryan Braun’s statement

By Nathan Petrashek

Ryan Braun’s long awaited statement on his suspension has finally arrived, and it’s a doozy.  Literally.   The most remarkable thing about the statement is that it took him 943 words to say what could have been said in 17:

  • He’s sorry.
  • He’ll never do it again.
  • He did it only that one time.
  • He’s really sorry.

At the end of the day, it probably doesn’t matter what Braun had to say.  He destroyed every shred of credibility he had with his victory speech, so I won’t hold it against anyone if they believe he started doping at the University of Miami, or whenever.  His story has a lot of loose threads.

And what is Braun’s story, you ask?  Hampered by a calf strain in the summer of 2011, Braun said simply that he used “a cream and a lozenge” to speed his recovery.  Of course, he failed his test in October, so that must have been some strain.  And we don’t know how Braun hooked up with Tony Bosch and Biogenesis in the first place, though that’s probably (hopefully?) of greater interest to MLB in its quest to rid the sport of PEDs than to Braun’s ever-dwindling fan base.

Braun explains his actions following his failed test as “self righteous” and stemming from his belief that he was “wronged and attacked.”  This part of the statement I take at face value.  I’m sure in the months following his positive test, he did convince himself that he was in the right.  That even though he brazenly flouted the Joint Drug Agreement, Dino Laurenzi’s decision to store his sample in a plastic tub in his basement for days was somehow so much worse.  I’m sure Braun rationalized, diminished, even denied his own drug use until, encouraged by the false confidence he had instilled in others, Braun somehow believed he stood on the moral high ground.

And so Braun’s most grievous sin is not his drug use, it’s his arrogance.  He believed he could beat a system in which he had been caught red-handed.  And he did, for a time, but not before smearing Laurenzi who, even if he didn’t exercise the best judgment in handling Braun’s sample, certainly didn’t deserve the inference of tampering Braun tried to create.  Notably, Braun did not say he had “privately expressed” his apologies to Laurenzi, as he did to MLB and Players’ Association officials.

Braun’s ego was the problem, and it may still be.  But he can’t dodge the cameras and questions forever.  And when they finally catch up to him, he’s going to wish a calf strain was his biggest worry.

Finally, closure on Ryan Braun

By Nathan Petrashek

Braun“I realize now that I have made some mistakes. I am willing to accept the consequences of those actions.”

With those words, the Ryan Braun PED saga finally reached its conclusion on Monday, as Braun accepted an unpaid 65-game suspension from MLB and will sit out the remainder of the season.

For more than a year, Braun has steadfastly maintained his absolute innocence, denying any connection to banned substances after a failed 2011 drug test.  That test was thrown out in a 2012 appeal, and Braun went on to declare himself vindicated, claiming, “If I had done this intentionally or unintentionally, I’d be the first one to step up and say, ‘I did it.’”  Many wanted to believe him. It was an unbelievable performance.

But as I’ve written previously, his spring training presser raised plenty of questions.  Braun attacked the character of the sample collector, Dino Laurenzi, Jr., saying, “a lot of things we learned about the collector, the collection process … made us very concerned and very suspicious about what could have actually happened.”  That Braun was attempting to create an inference of tampering was undeniable.  But what motive could Laurenzi have possibly had? And what about MLB’s claim that the sample arrived at the testing agency sealed, intact, and undegraded?  Braun only made matters worse when he declared there was a “real story” known only to his friends and family.

Braun, of course, did not offer any evidence to support those strong statements, and they so infuriated MLB that when Braun’s name was linked to an alleged doping clinic in Miami, it left no stone unturned in its subsequent investigation.  It made a sweetheart deal with the clinic’s drug-peddling owner, Tony Bosch, and ponied up cash to get testimony and documents from employees with equally dubious backgrounds.  And even though this mafia-style “investigation” looked like payback for Braun’s victory, there’s no doubting this: it was effective to the point that the union virtually conceded during the All-Star break that it would not put up much of a fight should MLB decide to issue suspensions.

That doesn’t make it right, though.  For those of us who defended Braun’s procedural rights throughout his appeal and the Biogenesis saga, Braun’s admission is a bit of a slap in the face.  Not because we thought he was innocent, but because he, and any other player, deserved the protections built into the Joint Drug Agreement.  I recognize that many knowledgeable baseball minds will disagree, but I wholeheartedly endorse strong discipline, including the possibility of a lifetime ban, for PED use.  But such strong punishment – depriving a player of his livelihood – deserves equally strong procedural safeguards.  Unfortunately, “effective” is now all anyone will remember about the MLB investigation.

As for Braun, he deserves what he has coming to him.  To anyone with a skeptical mind, it isn’t much of a surprise that he’s guilty; too many connected dots, and too many incomplete explanations.  I hope his acts of contrition include apologies to the teammates and front office personnel he personally deceived, and Laurenzi, whose name he publicly dragged through the mud.

And hopefully that’s the way one of the longest, most-scrutinized off-field dramas in Milwaukee Brewers history will end.

The Failure of Bud Selig’s Logic

By Nathan Petrashek

Bud Selig has been on a whirlwind public relations tour over the All-Star break, but he just can’t seem to keep focused on the All-Star game.  Instead, everyone wants to know when the other shoe will drop in the Biogenesis investigation, a wide-ranging probe in the now-defunct anti-aging clinic that baseball believes supplied banned substances to some of the game’s brightest stars.

“This sport is cleaner than ever,” declared Selig at a POLITICO-sponsored breakfast interview.  It’s common to hear Selig speak of baseball’s drug agreement as the “toughest drug-testing program in America,” with harsh penalties and strict enforcement.

You have to wonder: if that were true, why is Biogenesis even a thing?

Keep in mind what baseball is desperately trying to do here.  They’ve doled out loads of money to consultants, private investigators, and drug peddlers in an effort to come up with something, anything, tying players to PEDs.  And there are apparently a lot of players caught up in this fishing expedition; if you believe media reports, anywhere between 20 and 100.  And though Selig has declined to say how many players might be suspended, he confirmed David Letterman’s hunch that a “day of reckoning” was on the horizon.  Those aren’t exactly words you use if you’re talking about a couple of fringe players.

And yet, as far as we know, not one of the players whose head is on the chopping block has actually failed a drug test.  Well, excluding Ryan Braun.  But even that test was thrown out because it was handled improperly – which is, by the way, evidence that the “toughest drug-testing program in America” really isn’t.

Is it really a clean sport if you have a huge segment of your playing population implicated in a drug scandal and yet can’t produce one positive test to corroborate circumstantial evidence of use?

What the appellate process would look like for Ryan Braun

By Nathan Petrashek

ryan-braun-mvp-ped-suspensionI intended to sit down last night after the game and write about the controversy that divides Brewer nation: Rickie Weeks vs. Scooter Gennett.  Instead, just before I arrived at the game, an even more controversial topic was revived by an ESPN report claiming that MLB “will seek to suspend about 20 players connected to the Miami-area clinic at the heart of an ongoing performance-enhancing drug scandal,” including Ryan Braun.

As Kyle Lobner over at Brew Crew Ball observes, that isn’t really news.  MLB has been “seeking to suspend” Braun for over 1 1/2 years.  What is news is that the former head of the now-defunct clinic has reached an agreement with MLB and will cooperate with MLB’s investigation.  Presumably, this includes providing information and documents about his clinic’s activities; according to ESPN, Bosch will provide “anything in his possession that could help MLB build cases against” players.  In exchange, MLB will drop a lawsuit it filed against Bosch, a suit that could have had legs but was pretty clearly intended to use the judicial process to obtain the documents Bosch has now agreed to provide.  Bosch also gets indemnification for his clinic’s potential liability and personal security.  But it seems the thing Bosch fears most is federal prosecution; his attorneys, who checked in with the Department of Justice during negotiations, also bargained for MLB’s promise to help with any future criminal charges.  Which isn’t a small benefit, because MLB was the one attempting to bring federal authorities into this mess in the first place.

Bosch hasn’t yet sung; word is he’ll meet with attorneys and officials on Friday, and it’s not clear when any document disclosures will take place.  The ESPN report seems to project a pretty ambitious timeline, then, in anticipating that suspensions will be levied in just two weeks.  Probably not going to happen.  And since we have virtually no facts about the clinic, Bosch, MLB’s investigation, or what might be revealed about individual players, including Ryan Braun, it makes little sense to speculate whether a suspension is justified at this stage.  What I want to do here is outline the process of Braun’s inevitable appeal should he be suspended.

Section 2 of the Joint Drug Agreement prohibits players from “using, possessing, selling, facilitating the sale of, distributing, or facilitating the distribution of” any prohibited substance.  This means that the complicated testing process we’ve all come to know is just one aspect of enforcing the JDA; a positive test will indicate the presence of a banned substance in a player’s body, but MLB can’t prove commission of any of the other offenses by virtue of a chemical test.

So how much evidence does MLB need to punish a player for possession, sale, or distribution of a banned substance in the absence of a positive test?  We have no idea.  The JDA doesn’t specifically say.  The “Discipline” section appears to gives the Commissioner pretty much unfettered discretion to prosecute players for these acts.  With respect to sale or distribution, the Commissioner only needs evidence of participation.  Absent a criminal conviction or positive test, the Commissioner only needs “just cause” to suspend for use or possession.  We have no idea what “just cause” is because the JDA doesn’t say.

This obviously leaves substantial room for Braun and the union to argue against any non-analytical suspension.  The process for challenging a suspension will look familiar to those who followed Braun’s earlier appeal.  An arbitration panel consisting of an impartial arbitrator (and perhaps two party arbitrators) will be appointed.  The panel will decide independently (i.e. without deference to the Commissioner) the appropriate level of discipline and whether that discipline was supported by “just cause” – again, whatever that means.  There are special rules governing the timing of these “just cause” appeals.  The panel has to convene a hearing as soon as practicable but no later than 20 days after the appeal.  The panel then must make “all reasonable efforts” to finish taking evidence, close the hearing, and reach a decision within 25 days.  It then has 30 days to reduce that decision to writing.

What this should tell you is that, even if MLB levies a suspension against Braun within the next two weeks, it will be months before there is any definitive resolution of the matter.  The legal issues-like the meaning of “just cause”-arising from the JDA’s poor drafting could elongate that timeline even further.  In short: there isn’t going to be a quick resolution, and Braun could well have another lengthy fight on his hands.

Don’t believe what you hear about Ryan Braun

By Nathan Petrashek

Let me put this out there immediately: I have no idea whether Ryan Braun used performance-enhancing drugs.  It’s entirely possible that he did.  As much as we think we do, we (fans) don’t know who professional athletes really are.  While everything in Braun’s public persona suggests to me he didn’t, I simply don’t know.  And neither does anyone else except Ryan Braun.

That didn’t stop a ton of national reporters from generating clicks with misleading headlines.

Here’s one from SI’s Tom Verducci: “As Braun’s name surfaces in PED scandal, another sad day for sports”

The Miami Herald writes: “Braun releases statement on PED link to Miami-based clinic”

Even the Journal-Sentinel’s Tom Haudricourt gets in on the fun: “Ryan Braun attributes PED link to Research for 2011 drug appeal”

The problem: Recently discovered documents don’t link Ryan Braun to PEDs.

Let’s recap what we know.  Less than a week ago, the Miami New Times published a report linking some of baseball’s biggest names, including Alex Rodriguez, Nelson Cruz, and Melky Cabrera, with a Miami anti-aging clinic that also supposedly supplied performance-enhancing drugs.  The New Times obtained the records from an employee who worked at the clinic, Biogenesis, before it closed in December 2012.  The records contained numerous references to the University of Miami baseball team, including conditioning coach Jimmy Goins, which I said at the time spelled bad news for Braun after his successful appeal of a positive drug test in 2011.

It got much worse for Braun yesterday.  Yahoo’s Tim Brown and Jeff Passan found Braun’s name in the Biogensis records.  In some people’s minds, this meant an immediate link to PEDs and guilt.  Yet Brown and Passan specifically stated:

Three of the Biogenesis clinic records obtained by Yahoo! Sports show Braun’s name. Unlike the players named by the Miami New Times in its report that blew open the Biogenesis case, Braun’s name is not listed next to any specific PEDs.

Which is why the New Times didn’t report his name in the first place, incidentally.  In a blog post, the Mami New Times’ Chuck Strouse clarified:

Yahoo!’s story raises an obvious question. If Braun and Cervelli’s name appear in the Bosch records at the heart of New Times‘ investigation — and indeed, Yahoo!’s report does appear to match New Times records — why didn’t we report them in our first story?

Simple: An abundance of caution.

As Yahoo! notes, the records do not clearly associate either Braun, Cervelli or a third player who this morning denied all ties with Bosch (Orioles third baseman Danny Valencia) with use of supplements. Yahoo! apparently obtained copies of just these page of Bosch’s notebooks independently of New Times.

So what did the Biogenesis records reveal?  The Yahoo! story identifies three documents with Braun’s name:

1) A list that includes some players linked to PEDs (Rodriguez, Cabrera, and Cesar Carrillo) and some not (Francisco Cervelli and Danny Valencia).

2) A document which lists Braun’s name along with “RB 20-30k.”  A picture of this document was not included in the Yahoo! report.

3) A letter to an associate apparently congratulating Melky Cabrera on his MVP and referencing something called the “‘Braun’ advantage.”

Braun issued a plausible explanation after the story broke, claiming his attorneys consulted with Tony Bosch, a Biogenesis employee, while preparing for his successful appeal. Braun stated Bosch answered questions “about T/E ratio and possibilities of tampering with samples.”  According to Braun, there was a dispute over compensation for Bosch’s work, which was why Braun and his lawyer were listed under “moneys owed” and not on any other list.

This is at least consistent with the “RB 20-30k” notation and multiple references to one of Braun’s lawyers, Chris Lyons, later in the documents.  David Cornwell, another Braun attorney, released a statement saying he was introduced to Bosch early in Braun’s case and “found Bosch’s value to be negligible.”

While the reference to a “‘Braun’ advantage” is somewhat troubling, it amounts to nothing more than an obscure and ambiguous reference in a letter that could mean almost anything.  Nothing in the newest documents directly links Braun to PEDs or gives any more clarity to the circumstances surrounding Braun’s positive test in 2011 (for which I found Braun’s explanation last year wanting).

In short, we don’t know much more now than we did in 2011.  As with his statement last year, Braun’s most recent pronouncement almost raises more questions than answers.

So if you read anything proclaiming Braun definitively guilty or innocent, don’t believe it.  We just don’t know.