Pro Baseball Procedure Protects Braun in Suspension Reversal
The Sports Blawg with the Fordham Sports Law Forum
On February 23rd, Ryan Braun, last year’s National League most valuable player, saw his 50-game suspension for violating Major League Baseball’s drug policy overturned.
Braun had a urine sample collected after the first game of the Milwaukee Brewers 2011 postseason by an experienced drug tester. When no FedEx shipping centers were open on the day of the collection, the tester took the sample home and stored it for the weekend in a refrigerator in his basement. The sample was then sent to a Montreal laboratory where it arrived with the seal intact and with no signs of tampering. These facts are not disputed.
On Dec. 10th, ESPN leaked a story that the sample had tested positive for the highest amount of synthetic testosterone that baseball’s drug monitoring program had ever seen. After the MLB handed down the 50-game suspension mandated by its drug policy, Braun appealed to a three-person panel. This panel, consisting of league representative Rob Manfred, MLB Player Association executive director Michael Weiner, and arbitrator Shyam Das, decided in a 2-1 vote that the 50-game suspension should be overturned because the sample was not delivered to the lab in a timely manner.
There are two possible conclusions that can be drawn from this.
The first, what we’ll call the “Hollywood theory,” goes something like this: a covert saboteur with an intimate knowledge of MLB drug testing and a vendetta against Braun arranged for the closure of all local FedEx branches on the testing day and proceeded to identify and follow home the exact drug tester who had collected Braun’s sample. After breaking into the man’s basement, our stealth operative replaced Braun’s sample with an identical perfectly sealed replica that contained urine saturated with synthetic testosterone. He then slunk away, leaving no trace, and sat in silence as his villainous plan to destroy Braun unfurled. Luckily, the panel saw through this elaborate ruse, good trumped evil, and justice prevailed.
Or… Braun, the National League MVP, took performance-enhancing drugs and got away with it based on a procedural technicality.
Either way, this decision has raised many questions concerning baseball’s drug testing program and may result in legal action by both Braun and MLB. The most obvious concern is that MLB did not enforce the suspension to protect one of its young stars. Because baseball is one of the few professional sports organizations that does its drug testing in-house, there are doubts about the legitimacy of the proceedings. For example, why were League and MLBPA representatives given a vote on the appeals panel when they were clearly biased? Why doesn’t baseball use a trusted and widely accepted drug testing organization such as the World Anti-Doping Agency? The director general of WADA released a statement saying that their code required that “the athlete would have to show that the departure from the rule caused the adverse finding.” In this case, neither side contends that the delay in processing affected the lab results in any way, so it is odd that baseball would purport to employ a stricter procedural standard than the organization that polices the Olympics.
One of the main legal concerns involved in this case is the breach of confidentiality that occurred in leaking Braun’s test results to the press. Braun said in a recent statement that he was irreparably harmed by the breach and that he is contemplating legal action. At this point all parties claim that there is no way the leak could have come from their side and the finger pointing makes it unclear who Braun might file a lawsuit against.
There have also been reports that MLB might file a lawsuit in federal court to overturn Mr. Das’s decision in an attempt to support the legitimacy of their testing program. It is not clear if MLB would have standing, however, as this is the first time a violation has been overturned based on procedure; there may be some provisions in baseball’s drug enforcement policy that require a consideration of the merits.
This case opens the door to an old debate in legal philosophy between the importance of enforcing procedural rights and the substantive pursuit of guilt or innocence. Should Braun be able to claim that he is innocent when he won the case based on a minor violation of procedural rules and where the merits were never even considered? Anyone who is familiar with basic Civil Procedure or Criminal Law knows that this happens all of the time in courts across the country. When police conduct a search without a warrant or interrogate a suspect in custody without reading Miranda rights, evidence obtained from those interactions will not be allowed in court and criminals may be allowed to walk free. These and many other procedural protections are essential components of our Constitution and are engrained in our legal system. It is a cornerstone of American jurisprudence that it is better for ten guilty men to go free, than one innocent man to suffer. But should this reasoning apply to baseball, to a game?
The Braun case is much different than those concerning constitutional rights discussed above, but it is the same principle in action here. Procedure trumps substance in the court of law and apparently in Major League Baseball as well. Here, the breach of procedure had no effect on the validity of the test results and allowing a sample to sit in a refrigerator over night cannot result in the spontaneous synthesizing of testosterone. However, like it or not, this is not a question concerning the merits. And Ryan Braun is an innocent man.
The Fordham Sports Law Forum is dedicated to bringing interesting issues in sports law to the Fordham legal community. Each week, in conjunction with the Intellectual Property, Media & Entertainment Law Journal, members of the Fordham Sports Law Forum write posts about current sports law issues and events.
