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.

PEDs, the “Character” Clause, and Hall of Fame Voting

By Nathan Petrashek

Over on Twitter, Jim Breen of Bernie’s Crew is terribly impressed with an article by Rob Neyer. It seems Neyer doesn’t take kindly to the Cooperstown voting style of MLB.com’s Terrence Moore, and Neyer just won’t tolerate a baseball writer who won’t vote for Barry Bonds and Roger Clemens.*  Neyer takes Moore to task for his invocation of the so-called “character” clause, asserting that not even the legendary Mickey Mantle, with all his intoxication and womanizing, would have made it in the Hall.  To prove his point, Neyer concocts a fictional twenty-year MLB veteran named Joe, whose body begins falling apart in the midst of a wild card race.  Joe applies an unknown white substance recommended by a friend for a week to speed his recovery time.  Relating “Joe” to Mantle, Neyer asks whether a player who routinely drinks himself into a stupor and shows up for work half-drunk should make the Hall over a player like Joe, who will do whatever he can – steroid use included – to play as well as he can.

As a blogger, I like Jim Breen’s work.  He’s normally a very logical, thorough guy.  Which is why I’m shocked that he couldn’t see through Neyer’s hatchet job.

The “character” clause states that Hall of Fame voters are to consider a player’s “integrity, sportsmanship, [and] character” in addition to the player’s record, playing ability, and contributions to his teams.  It does not assign a weight to any particular factor, though obviously playing ability and records have come to dominate our discussion of what makes a very good player worthy of Cooperstown.

In fact, the character clause is deeply engrained in the Hall of Fame voting process.  The battle over the clause was largely settled in its favor way back in 1991, when the Hall of Fame voted to exclude any person on a permanent ineligibility list maintained by the MLB.  The rule change was a direct response to the case of Pete Rose, whose Hall of Fame case was otherwise undeniable.  As a practical matter, the vote operated as a de facto exclusion on character grounds.

Despite the character clause, the Hall of Fame has its fair share of members with, shall we say, dubious moral records.  As Neyer points out, Mickey Mantle was a drunk and a was famous for arriving at the ballpark hung over.  Babe Ruth’s infidelity didn’t stop voters from naming him one of the first inductees in 1936.  Orlando Cepeda, who was inducted by the Veteran’s Commitee in 1999, has been busted for marijuana possession several times.

But there is an important distinction to be made here.  No one has ever argued, to my knowledge, that a player’s career was  helped by their excessive intoxication, or infidelity, or recreational drug use.  The fact that some members did these things does not speak highly of them, but the fact that they were able to succeed in spite of these failings says something about their abilities.

Unlike these human errors, steroids and other similar substances are taken for one reason: to give a player a competitive edge.  They’re designed to make you faster, stronger, durable.  And their roots extend so deeply beneath the numbers of some otherwise Hall-worthy players that it is virtually impossible to create a composite of the player had they not used such substances.  Because of the veil of secrecy that surrounds steroid use, there is no meaningful “before” and “after;” no way to tell who a player truly would have been absent the drug use (though some may try).  This is the most pernicious thing about baseball’s steroid era; even when you know a player was dirty (and figuring even that out is a difficult task), it is impossible to tell how dirty they were.

I, of course, find some sympathy for Neyer’s fictional Joe.  Hell, I would vote for Joe for the Hall of Fame, if the numbers were there.  Should a man’s legacy be for all time tainted because of one bad decision, made from noble intentions? But the occasional user does not, by and large, personify what we conjure up when discussing steroids in baseball.  Barry Bonds and Mark McGwire were not one-time users who suffered an ethical lapse in the midst of a playoff race.  Their alleged use was repeated, sustained, and deliberate; their denials amidst the growing evidence utterly unbelievable.

The most compelling argument that the pro-Hall bunch can muster again analogizes PED users to current Hall of Fame members, but this time the focus isn’t on hangovers or weed.  It’s about amphetamines, stimulants that according to certain reports were rampant throughout baseball well into the first decade of the 21st century.  If baseball writers have voted in known amphetamine users, the argument goes, why draw an arbitrary boundary to exclude steroid users?

But pointing out the failings of other Hall of Famers doesn’t make a case for the inclusion of PED users.  As Joe Posnanski has noted, if we’re talking about playing records, the argument that “X player is in the Hall, and so Y player should be too” can be used to justify nearly anyone for inclusion.  Pointing out the ethical lapses among current members does nothing more than make the case against inclusion for those members.  It does not bolster someone else’s case for getting in.  No, the current crop of alleged PED candidates – Barry Bonds, Roger Clemens, Mark McGwire – will have to make their case on their own, regardless of what Ralph Kiner did with some greenies in 1953.

For most of the upcoming Hall of Fame players who have admitted using PEDs (or for whom there exists a sufficient factual basis to conclude that they used), there’s no good way to separate what they did from what they put in their bodies.  There are, to be sure, some players whose use may have been so fleeting that it should not bar them Cooperstown, but of course we have no idea who those players are.  In any event, past history with Bonds and McGwire almost assures that a player’s denial will never be believed.

It is a sticky and troubling situation to which there is no good solution.  I am thankful that I am not (and probably never will be) a Hall of Fame voter, for they are in the unenviable position of cleaning up the mess the Steroid Era left in baseball’s kitchen.  And so my only advice is for voters to use both their head and their conscience when evaluating  steroid use on their Hall of Fame ballot.  The fact that Jeff Bagwell – a clear-cut, no-doubt Hall of Fame player – received only 56% of the vote based largely on unsubstantiated and baseless suspicions of PED use shows the writers need to use their heads more.  But for the Bonds and McGwires of baseball, I certainly won’t fault guys like Moore for voting their conscience and taking full advantage of the “character” clause.

*Alleged steroid users, the both of them.  Nothing has, as with most things steroid-related, been proven.

Jose Bautista, home run king?

Last night Jose Bautista hit his MLB-leading 17th and 18th home runs.  Bautista is on pace to not just replicate, but obliterate, last year’s 54 home run season. Not bad for a guy who, before last year, hit only 16 home runs in a season (2006).

To put that in perspective, the Brewers’ best slugger, Prince Fielder, is sitting at 10 home runs.  In fact, Fielder has only approached Bautista’s eye-popping home run total twice, in 2007 (50) and 2009 (46).

Fielder and Bautista were both slated to hit free agency after this season, but Bautista, unlike Fielder, signed what most now view as a team-friendly 5-year, $65 million extension that will keep him a Blue Jay until 2015.  Fielder is reportedly looking for a $200 million payday.

Baustita is well on his way to a historic campaign.  Through May 22, some of baseball’s top single-season sluggers put together only slightly better home run totals.  Barry Bonds, for example, hit 24 by this time in 2001; incidentally, Bonds absolutely demolished opposing pitching in mid-May of that year, knocking out 9 in the preceding days.  He would end the season, of course, with 73, topping Mark McGwire’s 70 in 1998.  McGwire had socked 21 by this time in that season.

Historic home run totals are still possible even with a slow start.  Sammy Sosa, who would go on to challenge McGwire for the season record in 1998, had hit only 9 by this time in that year.  And Roger Maris, whose record stood for 37 years, was only 7 home runs deep into his 61-run season by May 22, 1961.

Consider, though, that many of the sluggers just named are either suspected or admitted dopers, and the true significance of Bautista’s numbers becomes clear.  Bautista, simply put, is putting up historic home run totals in perhaps the most pervasive testing period in major league history.

What’s more, he’s doing it in “years of the pitcher,” when batting averages and power numbers are down all over baseball.  Yet here is Bautista, who just keeps hitting.  It should be fun to watch.

And maybe this year the MLB will deem him worthy of playing in the home run derby.