- Lester Munson, Legal Analyst
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In a decision that has embarrassed Major League Baseball and its performance-enhancing drug testing program, an arbitration panel has ruled that MLB failed to follow required sampling procedures and that reigning National League MVP Ryan Braun cannot be suspended for 50 games. The decision raises questions about baseball's drug testing protocols, the quality of MLB's work in its testing system and other legal issues. Here are some of the questions and their answers:
Why did the arbitrator, Shyam Das, cast the deciding vote for Braun and against MLB?
Under the rules that govern drug testing arbitrations, MLB must prove that its workers followed every step of an intricate procedure designed to make sure that the sample tested is from the player tested and has not been mixed up along the way. The procedure is spelled out in excruciating detail in the collective bargaining agreement between owners and the players. MLB has what is known as the "burden of proof." That means MLB must persuade the arbitrator that its specimen collector and its laboratory followed the required procedure step-by-step, with no exceptions. Braun and his attorneys, according to sources familiar with the evidence presented in the two-day arbitration hearing, showed that the collector failed to comply with some of the specific requirements. Instead of delivering the specimen immediately to a Federal Express office to be shipped to the MLB lab in Montreal, sources told ESPN.com that the collector took the sample home and left it in a Tupperware container on his desk for two days. The Braun defense team identified 12 FedEx offices where he could have delivered the sample in accordance with the procedure. It was a serious blunder by the sample collector.
A failure to follow the delivery procedure seems like a technicality. Does it mean that Braun was clean and had not used any prohibited substance?
The failure to follow the delivery procedure casts significant doubt on the integrity of the collection procedure. That alone might have been enough for Braun to prevail in the arbitration. But Braun's side went one step further. He and his lawyers, sources say, offered a DNA sample that could have been compared to the urine sample to determine whether the urine came from Braun. It was a bold move by Braun attorneys David Cornwell and Christopher Lyons. But instead of agreeing to a DNA test that would have determined conclusively whether it was Braun's urine that tested positive, MLB declined the offer. The refusal to agree to the DNA test likely pushed the arbitrator toward a ruling for Braun. It was also a major first step for Braun in the effort to clear his name. He and his attorneys can now argue that he was clean and that MLB deliberately denied him the opportunity to prove that scientifically.
What does MLB say in response the adverse decision?
Although MLB officials would not comment on the record, sources say they are still convinced that the sample tested came from Braun, and that the positive test result was correct. They emphasize that the FedEx package that arrived in the Montreal laboratory was sealed three times with tamper-proof seals: one on the box, one on a plastic bag inside the box and again on the vial that contained the urine. The lab chief, an MLB source told ESPN.com, testified that the urine was not tainted, that it was appropriate for testing and that it tested positive for testosterone. The baseball officials, sources say, are incensed that Braun, his attorneys and the union successfully attacked the integrity of a collection procedure that is a "joint" procedure. The word "joint" in this context means that the union and the league agreed to the procedure, made a mutual decision to hire the collection agency and were both obligated to abide by the results. Any failure to follow the joint procedure, the league officials assert, is a "technicality" and had no effect on the integrity of the sample or the results of the test.
What does this outcome mean for MLB and its testing program?
It is a humiliating defeat for MLB. The evidence presented in the hearing, according to ESPN.com sources, showed that MLB's procedures in this case were sloppy and unprofessional. The individual who collected the sample from Braun, sources say, is a part-time MLB worker. He collects the samples as a side job. His day job is in a hospital's physical therapy department. He not only failed to deliver the sample to one of 12 possible FedEx offices; he failed to follow the alternative procedure of placing it in a "clean and secure" location. Would his refrigerator have been a clean and secure place? We don't know. We do know that leaving it on his desk in a Tupperware container would not qualify as clean and secure. We also know that MLB might wish to reconsider its procedures for collecting samples on weekends, and perhaps its use of part-time sample collectors. If MLB's performance on the Braun test were to be graded on a pass-fail calculus, this would clearly be a fail. Within hours after the report of the arbitration decision, MLB officials were saying that they will make adjustments. "This is not a crisis," said one official to ESPN.com. "It is a chance to make our program better."
MLB says it may go to court to try to reverse the arbitrator's decision. Can MLB succeed and restore the 50-game suspension?
Very unlikely. The MLB attorneys are clearly not happy with the arbitrator's decision. They are angry, and they are embarrassed. They appear to be grasping for anything they can do. But it is extremely difficult to persuade a judge to overturn an arbitrator's decision. Arbitrations are established in part to avoid the cost and complexity of court litigation. If an arbitration process is to work properly, the arbitrator's decision must be considered final. MLB's attorneys know this; and, more importantly, judges know this. If any judge anywhere were to agree to review this decision, it would open the courts to reviews of thousands of arbitration decisions across the U.S. The courts are not interested in that kind of work, especially when both MLB and the players agreed in their negotiations that drug testing issues would be decided by arbitrators. An attempt to review the Braun decision in court litigation most likely would just add to MLB's embarrassment. It is entirely possible that a judge could look at an MLB lawsuit and decide it should never have been filed. MLB could then face the prospect of paying Braun's legal fees, which would be another humiliating decision. MLB officials will review the written opinion from Das, the arbitrator, when it becomes available in about a month, and then make a decision on whether to attack it in court.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
The issues in the Ryan Braun ruling are embarrassing for MLB. A Q&A analysis of how it happened.