Why it’s better to be a Marlin

By Nathan Petrashek

Braun's successful appeal may have eliminated the 50-game suspension he faced, but it might not protect him from other long-term implications.

With the Brewers having had their own recent brush with banned drugs, this should be of some interest:  today, MLB and MLBPA announced enhanced testing and punishment for PEDs.  Players will be tested more frequently, and the 50/100/lifetime ban (which MLB really didn’t follow anyway) has been replaced by suspensions of 80/162/life for first, second, and third offenses, respectively.

That’s all fine, but here’s one big hangup in the new punishment protocols:

“A Player who is suspended for a violation involving a performance-enhancing substance will be ineligible to participate in the Postseason, and will not be eligible for an automatic share of the Player’s Pool provided to players on Clubs who participate in the Postseason.”

Others have argued it’s unfair to punish the team for the acts of an individual player by making him ineligible for the playoffs.  That argument doesn’t really work, though; isn’t the team “punished” when they lose a player for 80 regular season games, too?  The far more damning critique of this new postseason ban is it treats players differently depending on their team context.  In other words, a player on a playoff team will be penalized more harshly than a player on a non-playoff team.  And that’s bogus.

Let’s posit a hypothetical.  Player A plays for the Marlins, and he’s using synthetic testosterone and gets caught.  He denies using and appeals, accusing MLB of a witch hunt and the urine collector of tampering.  Player A loses his appeal and is suspended for 80 games.  The Marlins don’t make the playoffs, so Player A is effectively lost only for those 80 games.  Player B is a Tiger.  He also uses synthetic testosterone and gets caught, but apologizes and accepts his 80-game penalty without appeal.  The Tigers make a deep postseason run all the way to the World Series, for which Player B is ineligible.  His punishment is effectively 90 games for the same offense as Player A: 80 games plus, say, another 10 in the postseason.

I’m not sure how punishing two guys differently for the same offense based on team context is appropriate or fair.  And that’s doubly the case where the lesser-punished player drags the process through the mud or engages in other despicable conduct.  These drastically disparate sanctions for the same prohibited conduct are a blow to the consistency MLB should strive for in its application of the drug policy.

The new policy isn’t all bad for players, though.  The “zero tolerance” policy has been loosened a bit; arbitrators can now hand down lesser penalties if a player proves at the hearing the use wasn’t intended to enhance performance.  It’s not entirely clear how that would apply to a claim like Ryan Braun’s, though, in which he said he used to aid his recovery from injury.

Maybe the MLBPA had to give the postseason ban to push MLB off its “no tolerance” stance; I won’t pretend to know what the negotiations looked like.  Still, it’s a bad look for both organizations when you have a system in which players are treated differently depending on which uniform they wear.

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.

Lingering Questions

It’s been days since we learned of Ryan Braun’s exoneration in perhaps the biggest controversy since MLB and MLPBA instituted the current drug-testing policy.  Yet there are still lingering problems, with both sides.  The media didn’t waste any time disclosing the names of the collector of Braun’s urine sample and his son, and word is that MLB has assigned a security detail for their protection. My hope is that with this post, we can step away from the frenzy and approach this rationally.

Why did Braun attempt to create an inference of tampering in his press conference?

We now know that Braun successfully challenged his drug test on the basis of a 44-hour delay between the time of the test and the time it was eventually shipped via FedEx to a Montreal testing facility.  During that time, the collector apparently kept Braun’s sample and those of two other players in his home, but reports vary as to where precisely the samples were held; one version has the samples on a desk, another in the fridge, another in a cooler in the basement.  During his press conference, Braun made the following statement:

Why he didn’t bring it in, I don’t know. On the day that he did finally bring it in, FedEx opened at 7:30. Why didn’t he bring it in until 1:30? I can’t answer that question. Why was there zero documentation? What could have possibly happened to it during that 44-hour period? There were a lot of things that we learned about the collector, about the collection process, about the way that the entire thing worked that made us very concerned and very suspicious about what could have actually happened.

The inference Braun would have us draw is that the collector (or, perhaps, his son) had something to do with the positive drug test.

But why would Braun suggest this?  MLB has said that, at the hearing, neither Braun nor MLBPA contended that the sample had been tampered with.  The Montreal lab did not find any evidence of tampering, and, from Tom Haudricourt’s description of the process, tampering would be extraordinarily difficult to pull off, despite Braun’s statement during his news conference that “it would be extremely easy” for a motivated person.  And if reports are true that Braun was able to describe, with repeatable results, precisely how a 44-hour delay in transporting the sample could lead to an inaccurate test, then we have a scientific explanation and there is no need to allege malfeasance on the part of the collector.  And what motive might the collector have had?

What evidence Braun has against the collector, he declined to reveal.  Braun was up front in stating he could not answer those questions, as he is contemplating all his legal options.

**UPDATE**

According to a former Anti-Doping Agency official, a 44-hour delay could not have produced the positive result found in Braun’s sample.  If true, that would explain Braun’s tampering charge, but not how he won his appeal.  If he produced no evidence of tampering, and there is no scientific explanation for the positive result, how in the world was Braun exonerated?

What does the MLB have to gain by challenging the result of the arbitration hearing?

Almost immediately after the decision was announced, the MLB was reportedly contemplating federal litigation aimed at overturning the award.  But they appear to have nothing to gain by doing so.  Courts treat arbitration awards deferentially; they may vacate an award under only four circumstances:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a).  It isn’t enough to show that the panel committed error, or even serious error.  And let’s be clear; the dispute here is about the interpretation of the Joint Drug Agreement.  The arbitrator appears to have simply accepted the player’s interpretation over MLB’s.   In short, the MLB isn’t likely to succeed in federal litigation if it chooses to go that route, though its ultimate decision on the matter will have to wait until the arbitration panel issues its written opinion (due 30 days from the date of the award).

Indeed, by contemplating the litigation route, MLB appears by its actions to disregard the very process it now seeks to uphold.  On the one hand, the Commissioner’s Office wants to make its drug policy look airtight and infallible.  This is the message it seeks to broadcast with press releases stating, for example, that it “vehemently disagrees” with the panel’s decision.  Yet, on the other hand, a decision to litigate means that the process does not work; that it did not produce a just result in this case.  By litigating, MLB in fact concedes the system is flawed, and undermines its work to clean baseball up.

Why do some still view Braun as guilty?

This is a much tougher question, as it goes to philosophical debates this country has been having for centuries.  As one New York Met observed following the news of Braun’s exoneration, many (most?) still regard O.J. Simpson as guilty of killing his ex-wife, even though he was found innocent in a criminal trial.  The perception of many – that Braun skated on a technicality – is not likely to go away soon.  This is because many view Braun as not having challenged the science of his test.  In other words, the perception is that Braun has failed to explain why his sample was tainted in the first place.  Bob Wolfey reports that in unscientific polls, a majority of the nation felt that Braun’s legacy is still tarnished, although most aren’t sure whether he actually used PEDs.

This perception – that Braun has failed to prove his innocence – is inaccurate.  Again, Braun was apparently able to show how a sample sitting for 44 hours could become tainted.  But more than that, the perception is wrong because chain-of-custody (which many view as the “technicality”) IS a part of the scientific process.  We need to make sure that the sample was “pure” (as in untainted by outside influences), just as it was when it left Braun’s body.  The only way to demonstrate that is by ensuring that we know, at all times, where the sample is, what condition it is in, and who had access to it.

While it is correct that Braun did not prove that he never took performance enhancers, what we do know is that the process that yielded the positive result were so flawed that the panel’s confidence in the validity of the result was undermined.  In other words, the positive result was untrustworthy.  With that in mind, Braun has no obligation to prove that he never took PEDs, a likely impossible task anyway given the difficulty of proving a negative.  What he does have is an obligation, consistent with the Joint Drug Agreement, to ensure that nothing prohibited enters his body in the future.

What can MLB do to ensure this never happens again?

MLB and the MLBPA have an obligation to annually review the program and develop recommendations for improvement.  You can bet that’ll be an interesting meeting next year.

The current JDA lacks a hard deadline for shipment, but does say that, “absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected.”  The collector must take the specimens “to a FedEx Customer Service Center for shipment.  The specimens cannot be placed in a FedEx Drop Box location.”  If a collector does not immediately prepare the specimen for shipment, he or she has to “ensure that it is appropriately safeguarded during temporary storage.”  This requires that the collector “keep the chain of custody intact” and “store the samples in a cool and secure location.”

I suspect future changes will obligate the collector, before temporarily storing the samples, to verify that there are no open FedEx locations within a X-mile radius of the collection site.  In the event that a collector must store the samples because FedEx is closed, language will probably be added requiring the collector to mail the samples at beginning of the next business day.  While these changes might be tough for MLB to swallow – after all, failure to comply would mean more invalidated tests – it appears that spelling out the collector’s obligations up front is the only way to prevent future cases like Braun’s.  Presumably, the collection agency would then instruct its employees precisely what is expected of them.  Not that I expect there to be many of these cases; if you’re in the business, and you haven’t learned anything from the Braun affair, you should probably find another line of work.