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  Players will be tested more frequently, and the 50/100/lifetime ban (which MLB really didn’t follow anyway) has been replaced by suspensions of 80/162/life for first, second, and third offenses, respectively.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.

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.

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.

Braun Saga Not Even Close To Over

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.

Will the Braun saga go to extra innings?

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.