February 28, 2012

Bizball

With Ryan Braun, Details of MLB's Drug Testing Process Get More Questions than Answers

by Maury Brown

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Let’s just cut to the chase and say, “We don’t know.” Of course, we’re talking about Ryan Braun’s PED case, which saw his 50-game suspension overturned this past week. There are just too many questions still unanswered, many of which may never be fully known.  What we do know is there are two issues in the Braun case that are in direct conflict with each other: Braun tested positive for elevated levels of testosterone, and the manner in which Braun’s test specimen was handled was deemed to break the chain of custody protocol within baseball’s drug agreement. You can argue that Braun’s comments come into play as well, but at the heart of it, the matter is about a positive PED test and the manner in which the specimen that showed that Braun’s testosterone-to-epitestosterone ratio was over the threshold for a positive test was handled improperly. That’s it.

The following breaks down aspects of the most recently available Joint Drug Agreement (JDA) as it relates directly to the Braun case (a new JDA that is part of the recently reached CBA has not yet been released to the public).

Under Section 9D (Appeals – Challenges to a Positive Test), it reads:

In any case involving an alleged violation …. the Commissioner’s Office shall carry its initial burden of establishing the violation by establishing that a Player’s test result was “positive” (as that term is defined therein) and was obtained pursuant to a valid test conducted under the Program. The Commissioner’s Office is not required to otherwise establish intent, fault, negligence or knowing use of a Prohibited Substance on the Player’s part to establish such a violation.

In Braun’s case, the league met the criteria. Braun’s testosterone-to-epitestosterone ratio (T/E) was 20:1—not the highest ever tested but also not “barely over the limit.” To place that in perspective, the T/E ratio that must be found in order for a specimen to test positive for abnormally elevated levels of testosterone is 4:1. In other words, Braun’s levels were five times greater than the threshold.

Continued as part of Section 9D, the JDA places the onus on the player to prove innocence:

If the Commissioner’s Office meets its initial burden, the Player then has the burden of establishing that his test result was not due to his fault or negligence. A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the “positive” test result

Braun’s lawyers challenged the “reliability” of the test based upon the addendum to the JDA called the Major League Baseball Collections Procedures and Testing Protocols (which begins on page 28 of the JDA). This addendum is a very exacting protocol that spells out each step in how drug tests are to be conducted, all the way down to things like dress attire (business casual; Collectors and Chaperones shall wear slacks and a polo or button-up shirt). The “Collector” is the one that performs the collection of the “specimen” (in all testing, up until HGH testing begins, the specimen is urine).

Based upon sources that have knowledge of the process but were not allowed to speak on the record, details of the test in question show just how rigorous the collection process was.

As part of the process, Braun was correctly identified (e.g., through presentation of photo identification or identification by a Club Representative) as being tested. To ensure that nothing on Braun’s hands tainted the specimen being collected, he was asked to wash his hands with no soap, and the Collector observed him doing so. The Collector wore gloves so nothing on his hands could introduce a foreign substance into the test. Immediately, as part of the test, Braun provided the needed amount of urine. As called for by the process, he, not the Collector, closed the lid on the sample cup. Under Section N of the protocol, immediately after the specimen was collected from Braun, the Collector inspected it to determine its color and to look for any signs of contaminants. He did not note any such signs in the remarks section of the report. The specimen was split into two bottles with Braun as a witness. To ensure that the bottles that the specimen (now split into two bottles) didn’t have imperfections, the Collector turned the bottles upside-down for 10 seconds to see if there were any leaks (again, with Braun witnessing). A pH test is then conducted to determine if it falls with the range of  4.5 to 7.5, which Braun’s did.

From here, the chain-of-custody aspect, which proved so crucial to Braun’s case, took place. Braun blasted the drug testing policy of the league as “fatally flawed” and made comments about the Collector. “There were a lot of things that we learned about the Collector, about the collection process, about the way the entire thing works, that made us very concerned and very suspicious about what could have actually happened,” Braun said at his press conference on Friday

The Collector, Dino I. Laurenzi Jr., who according to a report in the Milwaukee Journal Sentinel is the director of rehabilitation services for United Hospital System, has been lauded by the league for handling “Mr. Braun’s sample consistent with instructions issued by our jointly retained collection agency,” as MLB Exec. VP of Labor Relations Rob Manfred put it.

Remember, Braun—as the player in the test—is an active witness to the collection process. He was asked to read the Donor Certification statement, “certifying that the specimen collected from the player, is in fact, the specimen he provided.” Braun then printed and signed his name, along with the date of the test (Saturday, Oct. 1, 2011, immediately after Game One of the NLDS against the Diamondbacks).

Laurenzi Jr. used all the materials (tamper-proof bags and packaging) to prepare the test sample for shipment to Doping Control Laboratory in Montreal.

Next we get to to the section of the JDA that allowed Braun’s legal team to win his case. Under Section XI (Procedures After Collection), subsection E reads:

If the specimen is not immediately prepared for shipment, the Collector shall ensure that it is appropriately safeguarded during temporary storage.

1. The Collector must keep the chain of custody intact.

2. The Collector must store the samples in a cool and secure location.

By now the story has been told, but it’s worth repeating. The sample was collected on a Saturday. Laurenzi Jr. thought FedEx did not ship on that day, and he therefore held the samples (along with those of two other players), in accordance with sections 1 and 2, for approximately 48 hours at his home.

Simply put, Braun won his case when Laurenzi Jr. had the opportunity to ship on a Saturday and didn’t.

At his press conference, Braun came off as extremely credible. In this case, however, so does the positive test that yielded not only a very high T/E ratio but which concluded that the testosterone in Braun’s system was synthetic. The lawyers for Braun never argued that. We are only left to wonder if somehow, someway, the sample was tampered with. There is no definitive way to say whether it was or was not tampered with. All we know is that when you look at the collection process, it appears to be a long-shot.

Outside of Braun testing positive in the first place, the question of who leaked his positive test to ESPN is still the largest story. On Friday, the league and MLBPA both released statements defending the drug policy and the system and, with it, taking blame off the league for any potential leak. Michael Weiner, the Executive Director of the MLBPA, said, “The breach of confidentiality associated with this matter is unfortunate but, after investigation, we are confident that it was not caused by the Commissioner’s Office, the MLBPA, or anyone associated in any way with the Program.” Rob Manfred added, “With regards to the breach of confidentiality regarding this case, both the Commissioner’s Office and the MLBPA have investigated the original leak of Ryan Braun’s test, and we are convinced that the leak did not come from the Commissioner’s Office.”

So, the question is, if it wasn’t the league, the MLBPA, or the Program, where did the leak occur? The answer may come from within the JDA, which provides a laundry list of other entities where that information could have possibly leaked from. Under Section 6 (Confidentiality), the JDA reads, in part:

The confidentiality of the Players’ participation in the Program is essential to the Program’s success. To best ensure that confidentiality is protected in all aspects of the Program’s operation, the Parties agree to the following confidentiality provisions:

A. Except as provided below, the Commissioner’s Office, the Association, the Treatment Board, the IPA, the Medical Testing Officer, Club personnel, and all of their members, affiliates, agents, consultants and employees, are prohibited from publicly disclosing information about an individual Player’s test results or testing history, Initial Evaluation, diagnosis, Treatment Program (including whether a Player is on either the Clinical or Administrative Track), prognosis or compliance with a Treatment Program…..

Look at that list. After the Commissioner’s Office and the MLBPA are listed, a host of other potential leak points join them, and a large number of people could have had reason to leak the information.

Whether this story will ever be fully over is unlikely. Legal recourse by Braun is certainly something that could come about as a result of his leaked test results. After all, if the confidentiality of the process were have to remained in tact, no one would have even known about his 50-game suspension being overturned. With the ruling, Braun will not be part of any clinical or administrative track within the drug policy. He will not see any extra testing and will remain subject to the process just as any other player that has yet to test positive for performance-enhancing drugs is.

The league has said it will be looking to update the JDA’s language immediately to prevent such a defense again. While it is far too early to speculate, it is possible that the league could appeal the ruling to a Federal court.

In the end, there are two conflicting issues, but the positive test was never argued. The chain of custody process was. That doesn’t address whether somehow, someway, Braun’s sample was possibly tampered with or if he actually did test positive. Braun is really the only one who knows. He’s saying that he didn’t take any PEDs, and fans will have to determine for themselves whether they believe that’s true or not. If ever there was a case deemed to be closed yet still had a mountain of open questions, it’s this one.

Maury Brown is an author of Baseball Prospectus. 
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