The BP Broadside

Good article on a topic that will cause many different reactions. Braun has maintained he was innocent from day one.
What brothers me is the leaking of a condidential process. Innocent or guilty, Braun's reputation is tarnised forevever. I am not sure the public was entitled to be a part of a confidential process. Yet, the reporters were lauded as being good investigate reporters -- Where did they get the leak? Did they pay for the information? Is there anything ESPN would not consider news worthy?
No simple answers -- Part of the 24/7 news frenzy we live in these days.

MLB employees fouled up, and that is not Braun’s fault. A test of a mishandled sample cannot be valid. The greatest and the least are entitled to be judged on honest scales, not weighted down by procedural failures. The burden is on MLB to hold up its side of the bargain: do a fair test to produce results that have integrity.

Oh, and about the “confidentiality” of the program. The biggest problem with the Ryan Braun situation is that we knew about it. This testing program is supposed to be confidential. Someone violated that. ESPN took advantage of that breach of faith, ran with it, and ensured that this process could not play out as the collective bargaining agreement provided. An “unnamed source” told TJ Quinn at ESPN, and an unnamed source is always unimpeachable. Let’s call Quinn’s “The Burning Bush.” The Burning Bush cannot be cross-examined. The Burning Bush never forgets, cannot be confused, and does not lie. How do we know? The Burning Bush & Quinn say so. WTF?

The only fair thing now is for MLB to ferret out the source. If it is an employee of MLB or its drug testing program, MLB should ensure that the individual loses his/her job.

There is a vast conspiracy at Fedex to tamper with Ryan Brauns urine sample. That makes perfect sense.

So, essentially, we still have no idea what happened or didn't happen except someone may have leaked something and something may have been fabricated... seems to be a lot something that may be nothing... or not?!?!?!

I highly doubt Braun's people put all their eggs in the chain-of-custody basket. You typically don't argue legal theories like that. Instead, you argue your two or three strongest arguments. You will usually lose on technical arguments like chain of custody and can no way bank on them.

I bet MLB's people selectively leaked the one defense that makes Braun look as if he was let off on a mere technicality. (Chain of custody for a urine sample is no mere technicality anyway!!)

Braun's appeal was heard by a three-man panel representing the players, MLB, and the neutral arbitrator. There was no evidence that anything went wrong with the chain of custody. The man who took the sample could not find a FEDEX office to mail it and testified that he kept it in his refrigerator for 48 hours until he could. The most you could say is that that was evidence that something COULD have happened to it during that time, but there's no evidence that anything DID, since the seals he put on at the time of the test, which I would assume Braun signed just the way I sign the ones I give out at work from time to time, were unbroken. Nor was there any rule against doing what the tester did (there is NOW.) Nonetheless, for reasons we do not know, the arbitrator ruled with Braun.

There is, by the way, a huge loophole in MLB testing directly related to this test: you have to have a very abnormally high ratio of testosterone to epistesterone to convict you of taking testosterone. But Braun's sample passed that threshold.

I will remain a devoted reader of Baseball Prospectus, but on this issue its writers seem to share the view of MLB(as well as of the players) that the game will benefit if players are given the benefit of every doubt. The idea that the National League MVP had used PED's was a clear threat to the game's integrity. That threat has now been dealt with with the help of the arbitrator. Whether justice was served is a separate question.

Ugh, my browser is not letting me hit reply to specific posts.
1 - KaiserD2, read some of the comments from MLB executives. They are definitely not happy. Congress made a public farce of their lack of testing, they were shamed, and Selig put in a strict program with the agreement of the players' union. They are VERY mad.
2 - Indeed, they are so mad that one wonders if the leak was intentional. They knew they had an unusual result. They suspected chain of custody problems? And they figured better to leak the issue and let the public condemn him because they might ultimately lose an arbitration? A conspiracy theory of speculation, but not that hard to imagine.
3 - Cachhubguy, Fedex had nothing to do with it, they were closed so the collector --- the guy responsible for taking and sealing the sample --- took it home and put it in his fridge. There is no evidence any seals were broken, but the failure to follow proper procedures (and some argue that these ARE proper procedures in other sports) raises the spectre of someone tampering with his results intentionally.
4 - The leak helped MLB look tough on PEDs, but it also destroyed Braun's reputation in violation of the CBA. Yes, Braun is now able to play without suspension, but he certainly faces a significant loss of future income resulting from the damage to his reputation caused by MLB and its agents violating the terms of the CBA.

In sum, according to information currently reported, MLB violated due process in two ways: (1) they, either directly or through their agents, leaked confidential information; and (2) they prosecuted a PED violation that was collected inconsistent with procedures agreed to in the CBA (though, to be fair, apparently consistent with collection procedures in other sports).

Mr. Goldman's point is that in our nation of laws, due process matters. It is not just a technicality. I just hope Braun stays clean until I trade him away off my keeper fantasy team some day.

I’ll make a couple of points here. First, we really do not know what the basis for the successful appeal was. There is, as far as I know, no published decision. Lester Munson said on Mike & Mike this morning that Braun’s representatives had (again apparently, because who really knows what the hell happened?) offered to have him submit DNA for comparison with the urine sample, and that MLB nixed that idea. Why would MLB not want that sample compared to Braun’s DNA if there was nothing to worry about? Munson implied that this tactic turned the arbitrator toward the appellant’s views on the case.

Second, the unfairness of playing this mess out in public is that an overwrought chattering class got to obsess about it for three months, only to have their applecart overturned when their world view collided with the reality of the process. Process matters (Ask George Hugely; he owes his life to process). Anyway, ESPN and their ilk are now going apoplectic, defensively trying to deflect attention from their highly destructive role in this fiasco. They caused a lot of the problems here by listening to The Burning Bush and then blabbing about it for weeks as if they knew everything . . . EVERYTHING . . . that was going on. Well, after all, The Burning Bush can never be wrong, can it?

You know, some day will come the day when The Burning Bush’s best move will be to put a cork in its mighty pie hole. Come to think of it, if that had happened 3,000 years ago or so, somewhere in the desert, the world might be a more peaceful place.

As long as the NDAA only covers purported enemies of the state rather than National League pitching, Braun still gets due process. Though any supposed teacher of constitutional law who can somehow sign such a document can probably work himself into the frame of mind that opposing senior league hurlers equals support for terrorists. Step lightly, Ryan!

My experience and reaction may be colored slightly by my job (I'm a defense attorney who does some product liability work). But, here goes...

Let's start with the idea that the whole basis for Ryan Braun's potential suspension was this positive test. The results of the test are, presumably, the reason why action was taken and why he was issued a 50 game suspension. So, the results of the test are the primary factor here, the primary evidence.

If that's the case, the way in which the evidence was drawn, evaluated, and kept are important issues. If any of those steps are done incorrectly, then there is a problem with the evidence that is the central factor in the case.

Then, it turns out that there was a problem, a chain of custody issue. There was a problem with the way in which this very important evidence was handled.

In that way, this doesn't seem like so much of a "technicality" or a "loophole." It goes to the heart of the entire case, and the care in which the process was undertaken.

Again, this all may be colored by my work experience. In my world (product liability defense), chain of custody is a huge issue. You look for chain of custody forms from other parties all the time, and if chain of custody is not properly documented or preserved, then it changes the whole complexion of the case.

The most interesting tidbits out of all of this to me is that:

1. Major League baseball uses Fedex to deliver samples for testing for MLB players to a lab in Montreal.
2. Samples from Minor league players go to a lab in Salt Lake City.
3. A tester took the sample home and stored it in a refrigerator until he could bring it to an open FedEx center. Its rumored that two other unnamed Brewers also failed tests from the same package.
4. That the leak of Braun's failed test came from someone within the Brewers Front Office.
5. Braun's defense hinting they contested whether the urine sample was even Braun's.

The oddest comment in the whole article is "If Braun is truly a cheat, he will slip up again." That's implausible and/or naively devoted to karmic sensibilities. To use Goldman's analogous case, I doubt that Joe Jackson would have gone anywhere near a gambler had he been allowed to stay in baseball. I can't see Braun slipping up again, even assuming he was using PEDs.

Horrible coverage of the 'Black Sox' scandal. Terrible. Landis proclaimed that knowledge of a fix or discussion of a fix, unless reported, would be grounds for permanent suspension from Major League Baseball. By which grounds Jackson (Weaver, too) was guilty as sin.

If I knew my co-workers were dipping into the till but kept my mouth shut about it, once that's shown to be so (and not necessarily beyond all reasonable doubt in a court of law) I'd fully expect to be shown the door, too. Very properly so.

The arbitrator absolutely made the right decision. Let's review the evidence in timeline fashion:

1. Braun repeatedly tests clean during the entire regular season.

2. At no point in Braun's career including the 2011 regular season have witnesses, reliable or shady characters, ever accused Braun of roiding.

3. At no point in Braun's career up to the present day has Braun undergone the sorts of documented behavioral and morphological indicative of, and incapable of being hidden by, roid use: no mood swings, no statistical performance swings correlated with roid cycles, no hair loss, body acne, unusual muscular or head growth (all of which were easily documented in the cases of guys like Bonds, Bret Boone).

4. He tested positive for "insanely high levels of testosterone" a single time in mid October 2011, levels that exceeded boundaries characteristic of positive tests of known, undisputed users. Something was out of ordinary from the start.

5. He immediately demanded a re-test and proclaimed his innocence to MLB authorities, and underwent a re-test within 1-2 weeks with a clean result. This is repeatedly being ignored in the media coverage and fan rants on the subject.

6. There are no known masking agents that can be reliably used to "beat" the current steroid test regime that MLB employs, which contrasts with the state of the science at the heart of the late 90's steroid era.

7. Proper handling and immediate refrigeration of biological samplesare not "technicalities" of drug testing in the scientific, criminal justice, or other arenas; rather they are essential for insuring that the results themselves are reliable. This applies to narcotic testing, blood alcohol testing, roids, the works.

8. Braun's sample was neither handled properly nor immediately refrigerated, but rather taken home overnight by a lab tech. This is not the same thing as a confession getting thrown out because a cop didnt read a suspect his rights first; this undercuts the test result reliability itself. This is not the same thing as a pound of narcotics seized from a trunk getting excluded from court because the cop pulled the car over to mess with the driver because he's black. Emphatically, Braun's defense was a substantive one not a technical one.

9. Roid tests involve known "false positives" a non trivial percentage of the time, perhaps as large as 10% in the scientific literature. That can occur regardless of proper chain of custody or refrigeration protocols being followed; ie the test regimes themselves, like all other scientific testing, have margins of error. Related examples include the fact that poppy seed ingestion can cause a false positive for heroin use, 10 stop watches timing a race will produce 10 different results even if properly calibrated, and when improperly calibrated, will produce a wholly wrong result.

10. Braun's lawyers are prohibited by the operating agreement, as is Braun himself, from making a specific defense to the media, so their vague protestations that he'd be vindicated do NOT indicate a lack of belief in his actual innocence. They followed the rules, MLB did not by "leaking" the test result to the media before the process played out. It is incorrect to assert that Braun is the only one vindicated by MLB's process. He is the only one PUBLICALLy vindicated, BP itself in prior articles has discussed the many private exonerations that MLB hasnt released to the public.

11. The immediate conviction of Braun in the court of the public opinion was disgusting and un American. We almost want the high paid atheletes to be knocked from their pedestal to make us feel good about ourselves. The continued conviction of Braun even after his vindication by the arbitration process is also disgusting. His critics know very little about what was presented in the hearing yet cite to unsourced conspiracy theories to explain Braun's acquittal. They made a decision long ago before hearing the evidence that he was guilty because it made them feel good to do so; their current protestations about Braun just demonstrate that once one's mind is made up no matter of hell on earth evidence can make many people change their minds. Hopefully they are never accused of any wrongdoing themselves in the public arena and someday must rely on a jury of their like minded peers to subjugate the actual evidence to their preexisting prejudices.

The immediate conviction is a byproduct of the steroid era and simple human nature.

Well stated.

To be clear, in support of "juiced."

This episode makes so much sense when you remember the policies behind the testing regime:

1) Make it look like MLB is doing something about PEDs.
2) Use negative publicity over PEDs as leverage over the players and their union.

"For a long time, due process was more about corporations than individuals—the Supreme Court spent decades saying you couldn’t have labor laws because they inhibited the free market, and any law that does that is messing with the right of due process."

Steven, this statement is both misleading and incorrect. Care to provide any citation to support your claim?

I assume you mean to refer to Lochner, but you wildly misstate the holding of the case, as well as the other cases relating to freedom of contract. The right vindicated by those cases is the right of an individual to be free from arbitrary, protectionist restrictions on labor without a valid health or safety reason.

Moreover, due process was never "more about corporations than individuals". Most due process cases were and are about not about the substantive due process to which you allude without naming it.

Given your solid writing in other areas, your misstatements of law and legal history are pretty disappointing.

Due process nowadays actually is as tilted in favor of corporations as its ever been , with the Supreme Court "reading" the First Amendment somehow in Citizens United to deem corporations to be "people" and corporate campaign contributions of money to be "free speech". Moreover, the Constitution applies to relationships between individuals and their govt, not relationship of individuals to their employers. Although hopefully, its lofty ideals are in practice applied in those disputes as well. SAdly this whole episode reveals that many Americans give lip service to presumptions of innocence and requirements of evidentiary proof.

Steven is closer to correct about Lochner and its progeny than you are. The law overturned in Lochner *was* a health/safety regulation (limiting bakers to 10 hours/day and 60 hours/week); the 5-4 majority held that the law unconstitutionally infringed on the parties' rights to contract. It was 30+ years later that a different majority held that substantive due process was no longer a bar to such statutes, and that governments (state and federal) *could* limit private contracts to protect (mostly workers') health and safety.

Mike you do realize that Lochner has been emphatically rejected by the next 8 plus decades of Supreme Court jurisprudence; ie, Congress' exercises of commerce power are routinely upheld rather than routinely rejected. Congress' regulation of contractual relationships need only meet a deferential rational basis test. Fact. Moreover the personification of corporations in Citizens is highly relevant to the court's intention to attribute them a higher level of due process than individuals. AFter all, corporations wont get put in jail for yelling fire in a crowded theater.

Wonderful article -- kudos to Steven Goldman for giving perspective on the issue that moves way beyond the cliches and inappropriate levels of rage you get everywhere else.

From today's New York Times:

"The tester claimed that by the time the test was completed early in the evening after the game there was no open FedEx center at which he could drop off the sample, the person with knowledge of the case said. Instead, he said the tester followed established protocol that when a sample cannot immediately be dropped off at a FedEx center it must be kept in a cold and secure place until it can be shipped.

"In this instance, the person said, the tester took the sample home and stored it in a refrigerator until he could bring it to an open FedEx center on Monday.

"Lawyers for Major League Baseball told the panel that the sample had been sealed in both a bag and then a box while Braun watched and that they showed no sign of tampering when the arrived at the Montreal laboratory."

I don't know why the arbitrator decided to side with Braun, but based upon those paragraphs, I can't see that there was any problem with the chain of custody.

Ultimately, in my mind what I don't understand is that Braun offered to have a DNA test to verify that the sample was his. MLB denied to do that. My question is why?

Really, what else could have Braun done to prove his innocense. From day 1 he was astonished by the positive test. He hired attorney's and began the fight. And he offered to have a DNA test to prove that the positive sample was not his.

This is an example of a case where you are guilty till proven otherwise. And even then, you're not cleared. I have heard from multiple reports that he and his attorneys are barred from going into the complete details of his case.

Last point, if you're going to assume that Braun is guilty then I have several unanswered questions. What of the 25 tests that came back negative? Even if you assume he was previously was using something that wasn't detected, did he suddenly become stupid and use something new that could be detected?

I am amazed both that everyone is so eager to ignore the evidence and even more amazed that anyone who makes obvious points is immediately censored, as I was the first time that I did. You might want to take a look at that first post--there was nothing abusive about it.

Today's New York Times initially said that Braun asked for a DNA test but backed down when MLB took him up on it. It also pointed out that if the tester had immediately taken the sample to FEDEX it would have sat in their office under much less safe conditions for the entire weekend--and testers in all sports have been dealing with this problem for years.

I manage a small manufacturing plant near Salt Lake City, Utah. We have to do pre-employment drug testing. There is a well understood chain of custody necessary for these tests. Is this really the best the MLB could do? It either sits in someone's refrigerator all weekend or in a FedEx warehouse? I think what we have is an administrative failure at MLB. RB was the beneficiary of a half-baked (pun intended) policy by MLB. Their poor planning was their own undoing. Now they are acting like a jilted bride. RB may have gotten off on a technicality, but that's not his fault.

That said, if RB was using, let's just watch his performance this year. As a Pirate's fan I hope he was using and now he's not. We need all the help we can get.