Ryan Braun's uphill battle
Arbitration hearing this week has big implications for NL MVP -- and baseball
Braun also told a reporter that he "can't wait" to explain himself and that he's "completely innocent," but so far his actual defense remains private. The reigning National League MVP is expected to appear before an arbitrator this week, with union and legal representation and what is sure to be a more nuanced argument.AP Photo/David J. Phillip Ryan Braun, the reigning National League MVP, is expected to appear before an arbitrator this week about a positive drug test that could lead to a 50-game suspension.
But whatever his explanation, history and MLB's drug policy suggest there is little he can argue to escape a 50-game suspension. No major league player has successfully appealed a positive test, and very few athletes around the world have ever done so.
Braun's case also has become both a test for MLB itself and a reflection of the dilemma faced by the sport. If Braun is suspended, it would show that MLB is committed to punishing even its most popular and successful players -- while at the same time undercutting commissioner Bud Selig's oft-declared pronouncement that the "steroid era" is over.
If Braun successfully argues that there was a flaw in either the testing or the policy, however, then his case could provide a precedent for players who test positive in the future.
"In this business, you frequently find yourself between a rock and hard place, and we've certainly found ourselves in that position frequently," says Travis Tygart, the senior managing director of the U.S. Anti-Doping Agency, who says he does not know details of Braun's case. "When we had to take back five medals from Marion Jones, it wasn't an easy thing, but you do the right thing for the integrity of sport."
It will all come down to the hearing, which has the hallmarks of a criminal trial.
Braun has been charged with the "crime" of doping. MLB will present its case before the arbitrator, citing the evidence of positive test results that reflect synthetic testosterone in the outfielder's system. The defense will present its own case. Braun's representatives have told reporters there are extenuating circumstances; for example, that his testosterone was so elevated that he couldn't have been intentionally doping.
Both sides can call witnesses and conduct cross-examination. The major difference, however, is the burden of proof: It's up to Braun to prove that he's innocent, not for MLB to prove that he's guilty.
A result could be announced within a week of the hearing, and a full report is usually issued after 30 days.
MLB officials would not comment or even confirm that Braun tested positive but in the past have said they were committed to punishing any player who runs afoul of the drug policy.
"I think one's heart gets involved because Braun is such an attractive guy, and we really don't see him having the need to have done what he did, which is why I could see that he took something that he didn't really understand, that contained the bad juice," says former MLB commissioner Fay Vincent, who also says he does not know the specifics of Braun's case. "But the fact is, it very well may have been steroids, testing was followed and he got caught. It's pretty hard to prove the negative; how can he prove that he didn't take the stuff?"
The standard is high: In order to reverse a positive test, Braun will have to argue that either the results were flawed or that there was no way he could have known that he ingested something that contained testosterone. Going after the test itself won't be easy. MLB uses a doping control lab in Montreal, which is accredited by the World Anti-Doping Agency (WADA) and has an international reputation for professionalism.
Proving he wasn't negligent in taking a substance won't be easy, either. Baseball's policy, like any standard anti-doping policy, does not excuse someone for lack of intent. If Braun says he bought a diet supplement that was tainted, he'll get no mercy from the arbitrator. MLB and the union have warned players for years about supplements and have a hotline players can call if they have questions about a product.
If Braun drank organic milk or something equally wholesome, however, and can prove that somehow it was tainted, then he might have a case that he wasn't negligent.
Braun's attorney, David Cornwell, declined comment.
MLB's policy does not call for the sort of career-killing penalties Olympic athletes can incur with a positive test, but it also offers no flexibility: He's guilty or he's innocent. WADA, which oversees Olympic testing, has some leeway in imposing penalties. Zach Lund, an American skeleton racer, missed the 2006 Winter Olympics because he tested positive for finasteride, a drug banned as a masking agent. He argued that he took the anti-baldness drug Propecia and offered his retreating hairline as exhibit A.
The Court for Arbitration in Sport, the final arbiter for Olympic sports, agreed that Lund's positive test was accidental and reduced his suspension to one year, rather than the standard two. MLB doesn't offer that sort of flexibility, but a 50-game suspension for a first offense is far less damaging to a player's career (and the team that pays him) than a two-year ban.
WADA director general David Howman says athletes of Braun's stature present more than a public relations problem for their sports (although he, too, says he has no idea whether Braun is guilty of doping).
"Any sport that has a positive case from a prominent athlete worries about it. You have to," Howman says. "There's got to be some reason for that particular athlete succumbing to the temptation to use something that might be enhancing his performance."
MLB has said previously when players were caught doping that it proved the system was working. But Vincent says his successor shouldn't have been so quick to say the "steroid era" was a thing of the past.[+] EnlargeJerry Lai/US PresswireBraun has denied he took performance-enhancing drugs.
"I think that was a very bad mistake. It's one thing to say the steroid era is over, but by that you mean people are very unlikely to be taking the same drugs they were taking over 10 years ago," Vincent says. "But to say that chemically enhanced performance drugs are not going to be a permanent part of the sports world, including baseball, that's just not sensible. Performance-enhancing drugs are here to stay, they will not go away in any sport, really, for the rest of time, and you have to deal with it being a race against the chemistry."
Positive tests have dropped significantly since baseball began testing in 2003, and most positives come from minor league players in the Dominican Republic, where many performance-enhancing drugs are readily available without a prescription.
Major leaguers have greater resources and access to sophisticated drug regimens that could evade detection, substances like human growth hormone, insulin-like growth factor and other drugs, so it is unusual that a player of Braun's means -- last year he signed a five-year, $105 million contract extension through 2020 -- would be caught through current testing.
His saga began with a random computer selection that produced his name. Following the Brewers' Oct. 2 victory over the Arizona Diamondbacks, in which Braun went 3-for-4 with a home run and a double, he was met by a doping control agent after his press conference. He was taken to a private room where, according to MLB policy, he would have been asked to lift his shirt above his abdomen, drop his pants below his knees and produce a urine sample as the agent watched.
That sample was sealed and logged, and later split into two samples -- an "A," which was then tested, and a "B," which was saved as a backup.
When Braun was informed that he had tested positive for elevated testosterone, he requested that MLB test the "B" sample, standard procedure to see if somehow the "A" sample had been tainted. The results matched. A subsequent, more comprehensive test, called an Isotope Ratio Mass Spectrometry (IRMS) test, determined that some of the testosterone in his system had been produced by an "exogenous," or outside, source.
For years there was one drug, DHEA, a legal precursor to testosterone, that provided a potential loophole. MLB did not ban the drug at the insistence of the players' association because DHEA is available without a prescription, though it is banned within the Olympic movement. It's a weak drug that serious dopers would not use, but it can cause the body to increase its testosterone production.
Sources familiar with MLB's testing history said there had been at least one case in which a player tested positive and said he had taken DHEA, and that MLB dropped the case because officials did not believe they could prove otherwise despite their doubts. But in recent years, the doping labs have gotten proficient enough at distinguishing DHEA from other substances that officials are confident a player couldn't evade a suspension by making such an argument.
When Manny Ramirez, like Braun, tested positive for elevated and synthetic testosterone in 2009, sources familiar with his case said he was prepared to fight it by saying he had taken DHEA. MLB was ready to fight back, but before the case came to a hearing, officials discovered Ramirez had received a prescription for another banned drug, human chorionic gonadotropin, which sealed his fate.
Anti-doping experts believe the hardest part of Braun's case will be explaining the IRMS test and the accusation that his body contained testosterone it didn't create. If he is unable to convince an arbitrator and is in fact suspended for 50 games, he will still have to make a case with the public that his accomplishments on the field did not come from a pharmacy.
"What he said when he was first confronted had a certain ring to it," Vincent says. "I'm just an old federal lawyer, and he made a pretty good case. It had the ring of his really being stunned, surprised. I have no evidence, don't know anything more than what I've followed. He's just a guy you root for. It kind of breaks your heart."
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