By Nathan Petrashek

Ryan Braun just completed his press conference at Maryvale, and emotionally proclaimed his innocence.  He dispensed with many of the rumors that have dogged him in the four months since news of his positive test broke, stating there is no “personal medical issue” and he has never had an STD.  He was emphatic that the system, at least in his case, was “fatally flawed.”

With the suspension issue behind him, the more interesting aspect of Braun’s case is what happens next.  Braun made clear he was contemplating litigation, presumably regarding the breach of confidentiality envisioned by the drug testing program.  The MLB, according to ESPN, is also considering litigation aimed at overturning the arbitration decision, though that would be incredibly difficult given the deference courts give to arbitration awards.

Presumably, the MLB will also conduct an investigation into the leak of the news.  Remember, if the program worked as intended, Braun would never have been lampooned in the court of public opinion.  We would never have known about the initial positive drug test.

There are other problems that MLB will have to investigate though, pressing ones that call into question the trustworthiness of the drug testing program itself.  We’ll have to wait until the arbitration panel’s written opinion is released, but Braun basically confirmed reports that there was a 44-hour window after his test was collected before it was given to FedEx.  The MLB, who has said it “vehemently disagrees” with the decision, apparently views the delay as within the scope of the testing program, but there is no doubt that this case raises questions about the validity of the collection procedures. Chris Narveson, the team’s player representative, said that there have been problems with collection before in Milwaukee, though he noted that he did not think there was flaws in the system.

Ultimately, Braun’s public image has been tarnished, and the damage may never be fully mitigated.  The fight on that front will take years, possibly longer than the litigation that both parties are apparently contemplating.  But Braun does have one advantage in that battle:  he is a human, a man capable of getting in front of a microphone and making an emotional, passionate statement like he did today.  That is a powerful tool against the amorphous corporate entity known as the MLB.

**UPDATE**

Both the Player’s Association and MLB have issued statements following Braun’s afternoon press conference.  Both are interesting and worth reading, but the takeaway here is that they apparently perceived Braun to be broadly attacking the drug testing program itself.  Braun was quite careful to say the system went awry in his particular case.  The other interesting tidbit here is that the MLB’s investigation of the leak is apparently complete, and it has concluded that neither the MLB nor the MLBPA was responsible.

By Nathan Petrashek

I was alerted tonight to this article in the New York Daily News, stating that a decision on Ryan Braun’s appeal of his positive drug test essentially has no deadline.  This contradicts earlier reports that the arbitration panel had 25 days after Braun’s hearing opened to render a decision.  Braun’s hearing opened on January 19, which means a decision would be due by Monday, February 13 if the latter sources are correct.  So which is it?  Will we – and, more importantly, the Brewers – know by Monday or be stuck in limbo for weeks?*

Thankfully, the MLB had seen fit to publish its Joint Drug Prevention and Treatment Program online, so we need not trust the media with this important piece of information.

We’re concerned here with section 9 of the Program, which governs appeals.  Section 9.C., specifically, controls appeals for a first positive test of a performance enhancing substance. Now, this is where our incomplete knowledge of this thing gets sticky.  We’ll assume, as has been widely reported, that Braun tested positive for elevated levels of testosterone.  Under the Program, testosterone is a performance enhancing substance, so section 9.C. is where we’ll find out what timeline applies to Braun’s appeal.

Here is the relevant portion of section 9.C.4., which describes the timeline for rendering a decision in an appeal:

The Panel shall convene a hearing as soon as practicable and, absent good cause shown, no later than 10 days after the Grievance was filed. The hearing shall be conducted under the Rules of Procedure, but the Panel Chair shall have the authority to employ such procedures as he or she deems appropriate given the Parties’ mutual desire for expedition. The Panel Chair, in employing such procedures, shall make all reasonable efforts to close the record at such time so as to permit an Award to issue within 25 days following the opening of the hearing. The Panel shall issue its written opinion within 30 days of issuance of its Award.

Given this, I think the 25-day window outlined in the second-to-last sentence still applies to Braun’s appeal.

The provision is clearly cognizant of the need for quick resolution of these types of disputes.  That factor is present here, as all interested parties would no doubt like this matter cleared up before spring training.  The provision, accordingly, doesn’t give the Panel Chair a free license to operate on whatever timeline he or she chooses.  In general, awards have to issue within 25 days following the opening of the hearing.

However, as with most rules, there are exceptions.  Section 9.C.4. recognizes that, in complex cases, a hearing might not be completed in time to render a decision within 25 days of its opening.  This might be the case where, say, the evidence cannot be presented in a short period of time due to the unavailability of a witness, or any of myriad other problems that often arise in litigation.  In that case, the Panel Chair is not bound to the 25-day deadline, but instead must use “reasonable efforts” to close the record as quickly as possible.  In other words, “reasonable efforts” must be taken to conclude the hearing expeditiously (no unreasonable delays), so that a decision may issue within or as close to 25 days as possible.

By all accounts, Braun’s is not a situation that required lengthy testimony.  The hearing opened on January 19 and was concluded by January 20. Now, we do not yet know what evidence was presented.  I suppose its possible that Braun offered a particularly complex defense that would necessitate a longer review period, though as I said I think the only way the panel busts on the 25-day decision window is when it can’t end the hearing quickly.  That doesn’t appear to be the case here.  And assuming that the hearing’s brevity also says something about the complexity of the evidence, I see no justification for the panel to deviate from the 25-day award period, particularly in light of the fact that spring training is quickly approaching.

So if Braun is suspended, we should know of the panel’s decision on or before Monday, with a written opinion following within 30 days.  But remember:  if Braun is found not guilty, we will not hear of the matter unless Braun or his representatives disclose that information – and you can bet on that happening, probably accompanied by a few verbal jabs directed at the Jim Caple types among the baseball writers.

*Note that the New York Daily News article was published on January 26, which means its prediction of a decision within “a couple weeks” would be fully consistent with the 25-day window.  However, the article does state that there is no “hard deadline” for the panel’s decision, which suggests that the appeal might stretch on indefinitely.