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.