Friday, February 24, 2012

Braun Over Brains: On "Technicalities," Precedent, and Confidentiality

by Jason Wojciechowski
This picture is a stupid joke
but I think it’s funny
Just in case TPA is the only site you read from under your rock in Siberia: Ryan Braun won his appeal from a 50-game suspension that would have been imposed for failing a "PE"D test. From what I understand, his argument hinged on mishandling of his urine sample, including the rather salacious fact that the collector of said sample stored it in his refrigerator for a few days because the FedEx store was closed.

About all of this, I have a few things to say.

First: I had a conversation with someone on Twitter today who told me that he still believes Braun used "PE"Ds, even though his case came out in his favor. This is exactly why confidentiality is supposed to be part of the testing program. Appeals happen in the dark and if the player wins, no member of the public is ever the wiser, thus preserving that player's reputation.

In fact, per Jimmy Rollins and Kevin Goldstein, as collected in this post by Jack Moore, this has actually happened. Will Carroll wrote this to me tonight, however:

It's not clear to me whether Carroll and Goldstein have heard different information or whether their tweets actually say the same thing, because Goldstein saying that cases "were turned over" could be perfectly consistent with Carroll -- there need not have to have been an appeal for a positive test to be thrown out. (I'd ask Goldstein, but, per Twitter, he's off playing Skyrim right now.)

Anyway, the point is that the system appears to have been working just fine prior to the Braun leak -- players had tests that came back positive and raised issues with those tests that either an arbitrator agreed with or MLB agreed with, the result of which, either way, was that the suspension was never put in place.

Braun, by contrast, now carries a black mark of having "failed a test," even though the whole point of his argument about the chain of custody of the urine sample and the failure to follow handling procedures is that the sample could have been tainted. Whatever the probability is that Braun actually did do something wrong, it's high enough for some people to mark him guilty even though it's not high enough for MLB to be permitted, under the agreement negotiated with the players and interpreted by arbitrator Shyam Das, to suspend him. I'm not terribly happy about that.

Second: a Twitter discussion ensued today in which it was asserted (names are omitted to protect the innocent) that a "bad precedent" had been set by this situation. Specifically, Braun's victory would open the door for all "PE"D test failers to complain about sample-mishandling. When I first heard the argument, I thought it was a little misguided. As I've considered it more over the course of my evening, I think it's absurd.

The core of my objection is this: the testing agreement between the players and management is a contract. Being the first person to assert a right that is laid out in the contract does not set a precedent, because it is in the contract. The testing agreement, as it should, has policies regarding the handling of urine samples. Ryan Braun did not come up with a novel legal theory regarding those procedures -- he simply asserted his rights under them. That he was the first person to do so makes no never mind.

And what's so bad about this "precedent" anyway? If players in the past have been so dumb as to fail to assert this defense to a positive test, what harm is done by reminding them of such right? Remember: none of this is supposed to be public. The next time a sample is mishandled and a player who would otherwise have been suspended gets to keep playing, we will, if the system works as it should, never hear about it. Any reputational harm to MLB, then, is entirely dependent on MLB failing to run a tight ship, not on The Braun Defense. And I fail to see any other harm -- steroid users will run amok? Not if the tests are handled properly from here on out.

Third: I saw far too many major writers and minor Twitter friends alike using words like "procedural" and "loophole" and "technicality." Jeff Passan even apparently heard that MLB will look to "close this loophole." That's probably posturing on MLB's part, putting the union in a situation it can't really win given the ongoing cultural witchhunt against "PE"D users, because there is no loophole. (SEE UPDATE BELOW.) What there is is a negotiated agreement that includes testing protocols and evidence-handling protocols. If MLB or whoever it hires to do its testing can't figure out how to effectively work within those protocols, then that's not a loophole -- that's just incompetence. As BPer Tommy Bennett has been known to say: listen to Colin for Colin is wise:

"Procedural" and "technicality" are similarly flawed terms for what happened in this case. The procedural vs. substantive line is actually a subject of significant debate in law, both on the scholarly side and the more practical side, and there's a good argument that it's a line that can't be drawn. Let's try to draw it anyway. Procedural rules are things like time limits for filing paperwork. Had Ryan Braun won this case because Rob Manfred sent a piece of paper to Shyam Das two days late or because someone forgot to sign a submission to the arbitrator, that would be a procedural victory. (Or a victory on a technicality.) Nothing about making a late filing of appeal paperwork undermines Braun's actual test result, but he would win because the union and MLB agreed to certain rules and certain consequences for violating those rules.

Here, by contrast, the evidence handling rules exist to preserve the quality of the test itself. Wendy Thurm was justly retweeted 33 times for the following:

Ryan Braun did not prove that he did not use "PE"Ds, but that's not the typical standard in a criminal-like situation (as I think this is) -- the burden is on the party making the accusation to prove it. And in any case, how does Braun prove a negative? No, what Braun did was attack the validity of the test itself, just the same as if he'd argued that the scientists doing the testing misread the data, or if the urine had spilled on the floor and been scooped up by the collector, or if he claimed that the sample wasn't his. What Braun effectively argued was "when a sample is handled in violation of the rules, we cannot trust the outcome of that sample to a high enough degree to take 50 games from me."

Fourth: don't even say Barry Bonds's name. Bonds, you'll recall, basically presented the case that he didn't know what he was using. His argument came down to his mens rea -- there were illegal substances in his body, but he didn't have intent to put them there or even knowledge that they were there. (Again, just to be clear: I'm not talking about what's true; I'm just stating Bonds's argument.) Braun, by contrast, didn't say "there were drugs in my body" and argue that he should be excused because he didn't know -- he publicly proclaimed that there were no drugs at all and then, in the appeal, showed why the test showing the contrary was not reliable. The difference between the two arguments could not be more stark.

"PE"Ds are fertile ground for baseball's moralists to get in high dudgeon, so a player beating the rap on what is perceived, for some reason, to be a technicality is understandably going to cause a storm of silliness. None of us are new to this silliness and it can be exhausting to constantly push back against it, but drugs are one area where the fight is worth having. This isn't petty arguments over whether we all live in our mom's basements -- it ultimately has to do with players' livelihoods and that of their families.

When the public gets up in arms about baseball and cheating and Those Poor Children, Congress has a way of stepping in, and when that happens, bad policy is a frequent result. Every situation like this is an opportunity for the High Lords of What is Right to call for pushing farther into the private lives of players, to demand more money be taken out of their pockets for lesser and lesser offenses. I'm fond of saying that baseball doesn't matter, but that's an oversimplification -- it matters immensely to those who put food on the table by playing the game. We shouldn't let the howling maniacs adversely affect those players by sheer volume of absurd complaint.
UPDATE! The Jeff Passan tweet that I mentioned regarding "closing a loophole" was this: I took that to mean that *MLB* was interested in "closing" the "loophole," but today, Passan tweeted this to me: Attitude aside (I'm not sure why my impugning MLB bugs him), it's an important, if somewhat mystifying, clarification. Why on earth would the players and/or union officials think this was a problem that needed to be fixed? Either way, though, it's the case, so apply this however you will to the analysis above.


Swoods said...

As certain administrative law professors are wont to reiterate, procedural and substantive lines are hard to draw because the procedural always bleeds over into the substantive. To echo Wendy Thurm, it's not about paperwork, it's about the accuracy of the fact-finding process. That accuracy, so it appears, has been compromised in this case.

Anonymous said...

What is the evidence that PEDs don't "EP"?

The Common Man said...

This site is pretty comprehensive, Anon:

Jason Wojciechowski said...

Also, to return to a theme of the entire "PE"D question, the burden of proof issue is important. It's not on the players to show that performance is not enhanced. It's on the people who want to punish someone for using them to show that performance is enhanced.

If MLB wanted to treat "PE"Ds like drugs of abuse, that would be one thing. They're substances that are unlawful to possess without a prescription, so maybe MLB wants to punish players for breaking the law. But that's, of course, not what MLB does -- they want to treat anabolic steroids or HGH or whatever else as something different (and worse) than cocaine and marijuana.

And to clarify: I'm not speaking legally about the burden of proof. It's a collectively bargained issue. But as a matter of the debate over how to treat "PE"Ds and people who use them, I think it's incumbent on those who believe that these drugs are special to prove that they are.

Chris St. John said...

After watching Braun's press conference, I wonder if the courier had a personal vendetta against him. Stick the sample in the microwave, leave it in the trunk overnight, mess it up somehow.

Anonymous said...

Fantastic column.

Vidor said...

Continuing to put the "PE" in PEDs in quotes is juvenile.

I am not shocked that this website chooses to take the "Braun is innocent!" tack, because if one is so cynical about PEDs that one cannot even accurately type the acronym, one will probably take pleasure in a player beating the rap. Nonetheless Passan's take seems a lot more valid to me than that of Thurm or The Platoon Advantage. Braun's lawyers did not argue that the test result was false. They didn't argue that the test result was true, but not valid because of some other cause like, I dunno, herpes medication. They argued on a technicality, and won. Fine. Don't pretend it was something it wasn't.

A while back when this website was comparing use of PEDs with wearing silly necklaces I asked why The Platoon Advantage ridicules concerns about PED use, and I was assured that no, The Common Man at least does not approve of PED use. What I still wonder is, why not? If you are so convinced that PEDs do not enhance performance that you feel you must use scare quotes, shouldn't you put your money where your mouth is and advocate for making them legal?

And for that matter, if PEDs don't enhance performance, is every governing body of every major sport stupid? Baseball, football, the Olympics, FIFA, the Tour de France--they all test for PEDs to some degree. Are they wasting their time?

Bill said...

Continuing to put the "PE" in PEDs in quotes is juvenile.

In the absence of any meaningful evidence that there are drugs that actually enhance a player's performance in baseball, I fail to see how.

It can't be competently argued that Passan's take is right. As Jason said, it's not a loophole or a technicality, it's a provision specifically written in to a carefully-negotiated agreement, for the purpose of ensuring that the results are reliable.

I'm not TCM, but my own answer to the "why not" question is that there tend to be serious health risks related to many of these substances, and while the players are free to ruin their lives all they want to, I don't think the fear that condoning it sends a bad message to student athletes, etc. is a totally illegitimate one.

Which partially answers your last question; also, with the amount of hysteria and misinformation about "PE"Ds swarming among the general public, to ignore the issue would be tantamount to organizational...if not suicide, then severe self-torture.