Appeal Won, Braun Waits for an Apology
For decades the culture of baseball was akin to that of a fiefdom. Lack of power among labor and the league’s de facto anti-trust exemption allowed the commissioner’s office and the owners to lord over players with little to no resistance. As we all know that tide eventually turned as labor organized and figures like Curt Flood helped galvanize opposition to baseball’s reserve clause and shift the balance of power dramatically towards the players.
This erosion of management’s power continued more or less unabated for years until the media-fomented outrage over the use of so called performance enhancing drugs reached a fever pitch as the purity of titans like Bonds, McGwire and Sosa came into question.
The fact that PEDs has become the accepted term for a large variety of supplements and drugs, the efficacy of which is often not established, speaks to the degree to which fan outrage has fueled the commissioner’s ability to frame the debate. It’s created an environment in which the impact of these substances is not only exaggerated, often to a surreal degree, but where due process is far less important to both the average fan and media talking-head than suspicion, presumption and righteous indignation.
Baseball failed in numerous ways in their handling of the Braun affair, the first and most visible of which was by leaking the results of a disputed test before the appeals process had been completed. We may never know who leaked the information and why, but as soon as those reported results hit the wire keyboards began smoldering all over the country as columnists nearly drowned in their own saliva, salivating as they hammered out one of thousands of effectively identical “fallen from grace” narratives about the hard working, much-loved MVP giving in to temptation and boosting his performance with verboten PEDs.
The reaction was revealing of the guilty until proven innocent environment baseball has created surrounding PEDs and thrust a player who is by all accounts a good person into a nearly unwinnable situation in which he could not speak out to defend himself beyond brief statements while the process was carrying itself out. The more he honored that process, even though baseball clearly did not, the more fans and the media took it as proof of guilt.
Now that Braun has won his appeal, the lugubrious Bud Selig and an endless stream of columnists have begun working to frame this decision in the same way they framed the entire debate in the first place.
A breach of chain of custody is not “a technicality”
As an adjunct professor of law like Bud Selig should know, the rules governing chain of custody were put in place to guarantee that evidence presented in a case is reliable and admissible. This becomes even more vital when dealing with a piece of evidence that is both perishable and fungible. Note the imprecise nature of baseball’s ability to account for the whereabouts and condition of Braun’s sample during the two days from acquisition to handing it off to their courier (from ESPN):
According to one of the sources, the collector, after getting Braun’s sample, was supposed to take the sample to FedEx Office for shipping but thought it was closed because it was late on a Saturday. As has occurred in some other instances, the collector took the sample home and kept it in a cool place and possibly refrigerated it. Policy states that the sample is supposed to get to FedEx as soon as possible.
Possibly refrigerated it. We are dealing with tests whose efficacy and reliability are not perfect, which is why an appeals process exists, and now we have a sample with a location and storage condition we cannot account for over a more than 48 hour period. What impact on the viability of a test sample would storing it at room temperature have? Was it stored in such a way that could have led to contamination leading to a false positive or otherwise imprecise result?
These are not minor technicalities. These are issues which undermine the viability of the sample, baseball’s ability to prove it’s the same sample that came from Braun and it violates the safeguards put in place to protect the collectively bargained rights of the players. This is not a loop-hole that needs to be closed, it’s an inexcusable breach in procedure that baseball may have tried to gloss over by leaking the results before arbitration began.
Braun is not the first to win an appeal
ESPN, like other media sources, is also reporting that this is the first time a player has won an arbitration case regarding a positive test for PEDs. There are two major factual problems with this:
- All we know for sure right now is that Braun tested for elevated levels of testosterone. We have reports that there may have been traces of synthetic testosterone in his system but that has not been established, so at this point it should not be considered.
- MLB’s own reporters have reported on at least one case of a previous successful appeal, by the Brewers Brendan Katin:
“If I hadn’t appealed, I imagine they would have never tested me for actual synthetic steroids,” Katin said. “It would’ve been a positive for my high levels of testosterone. They come at you like that, and if I was actually using something, I would’ve said, ‘OK, I got caught.’ But since I wasn’t using anything, I appealed.”
Katin’s agent filed the appeal, and the samples were tested for performance-enhancing drugs. None turned up. But it took two months before Katin got a phone call with the news that he had known all along: He was clean.
Additionally there is some question about the results of Braun’s appeal given that no reasoning for his arbitration victory was given, but again this seems to be common procedure:
He got the news when the Huntsville trainer handed Katin a piece of paper as he was boarding a bus for a game in Chattanooga.
“It said, ‘Congratulations, you won your appeal,’ and pretty much, that was it,” Katin said.
He never got an explanation for the high levels of testosterone, but said it may have been caused by having a few drinks the night before the test.
The lack of explanation is not a sign that baseball, whose representative voted against Braun’s appeal, is looking to cover their asses. On the contrary they very much wanted to win this appeal as Braun’s victory highlights their inconsistent handling of evidence and raises questions about the efficacy and reliability of tests baseball would like us to accept as bulletproof.
The efficacy of tests and baseball’s interests
The MLB of course realizes that these tests are fallible both due to the sampling and storage procedures employed and the fact that these tests look for factors like elevated testosterone that can be caused by numerous things apart from PEDs. That’s why an appeals process, B samples and retesting procedures exist.
Baseball’s fear remains that the very suspicion of PEDs will undermine fan confidence in the sport, which is why they were willing to sacrifice someone like Braun to give fans the impression they’re tough on PEDs and that their testing procedures are infallible. In baseball’s view the rights and innocence of an individual paled in importance to maintaining faith in their process, which shouldn’t come as a shock given that baseball treated players like property until 1975 when the threat of legislation and legal action forced them into arbitration and destroyed the reserve clause.
Braun, who has successfully passed by his own admission over 25 drug tests in his career including three separate tests over the last calender year, will now forever carry a Scarlett Letter due to an MLB employee’s lack of respect for the arbitration process and the reactionary and presumptuous way both fans and the media have treated this case.
In my view we should look at this as an outlier, a test where something clearly went wrong, and instead look at Braun’s long history of passed tests and give him the benefit of the doubt. The extreme nature of the testosterone to estrogen ratio, 20:1, screams for re-testing not for conclusions to be drawn–especially given the broken chain of custody. The manner in which baseball handled this case and its evidence would have resulted in their case being thrown out of court, and it rightly led to Braun’s victory in arbitration. My hope is that we as fans can do the same and dismiss that evidence as flawed, inadmissible and not worthy of consideration.
I am far more interested in the Brewers’ ability to win the NL Central without Prince Fielder than I am whether or not baseball’s flawed testing and evidence handling are sufficient to brand a good player and a good man a cheater.