Braun Case Lesson: Selig, Players, Owners Knew Testing Process is Dog & Pony Show

Everyone thinks there’s just one big story here: Ryan Braun got caught, then let off “on a technicality.” But there’s a much bigger, broader story, which is that the cover has been ripped off the entire “jointly-agreed” MLB drug-testing process. The absurd and disingenuous Braun Arbitration decision gave us a big peek behind the MLB drug-testing curtain, and not only is it not pretty. It’s much more of a sham than you thought. It’s a dog-and-pony show.

What we’ve learned from the Braun case is that the collectively-bargained MLB drug-testing process, adopted with much earnest fanfare after the steroid scandals of the ’90’s, has long had major holes in it — holes which have persisted, behind the private curtain, and which have benefited players and owners.

Here’s  the spin from MLB, which has been reported without criticism or analysis: that there have been twelve previously arbitrated player “appeals” in which Mr. Das upheld the finding positive urine test –and that this thirteenth (Braun) case is only one of the thirteen in which Das has found “for” the player. According to this “spun” analysis, Das is anything but biased toward finding “technicalities” which protect doping players.

But this spin uses the wrong denominator. Thirteen is not the pool of cases to review; in fact, that pool is surely, much, much bigger. Here’s why: under the CBA, the public ordinarily never hears about cases in which the Arbitration panel finds “for” the player (i.e., that the urine or other test is unreliable or inconclusive.) In sum, Arbitration appeals which result in a finding of no drug violation are, under the terms of the CBA, meant to be confidential.  So, if we’re looking at a “won-loss” column,  the results have not been 12 to 1 (“Drug Suspensions Upheld” far outnumber “Finding for the Player”.)

That score should be completely flip-flopped, most likely.  I don’t know what the real score is, but it might plausibly be 400 “Findings for Player” to 12 “Drug Suspensions Upheld.”  We just don’t know. (Just by way of one example, consider what’s also been leaked: that there were two other Brewers’ players, other than Braun, whose positive random tests recently were “overturned” by the Arbitrators. That’s three players from just one of the many teams, during one short period.)  Put it this way: God only knows just how many players over the last decade have been, in effect “let off on a technicality” by an Arbitration panel.

In effect, the “jointly agreed” drug-testing system is built to consistently let the public hear only about those instances in which the Arbitrator rules in favor of the suspension.  So the predilections of the Arbitrator are VERY important. And what we’ve learned about Das’ predilections, based on his sham Braun decision, which has almost no foundation in reality (after all, just suppose that the specimen sat out in a warm room for 48 hours — it would only decrease, to Braun’s benefit, the amount of banned substance found by the Montreal lab) suggests Das has been a major enabler of drug use by players.

What makes this Braun case different is that the result got leaked, by somebody, when it was supposed to have been kept confidential.

Now it’s dangerous to speculate why leaks occur; there are more different kinds of motives out there than there are snowflakes. But one common major reason for leaks is that conscientious, earnest people who are on the “inside” of the system perceive that the public is being deceived about the reality of the “justice” being advertised. What I’m leading to is that – and I’ll admit this is speculation – the leak may have occurred precisely because someone legitimately perceived that Arbitrator Das was “rolling over” far too much, to allow players randomly drug-tested to “get off.” On a “technicality.”

Follow me one more step here. Assuming Das (or any third Arbitrator) has long been showing a strong habit of “letting players off on technicalities” over the years, might this have actually served the intense, big-multi-million-dollar-business purposes of both players and owners?  Owners and players, after all, both know that juice “jumps” the players’ performance stats, and that higher stats  — like the glorious ones put up by Braun, for example– pump up ticket sales.

So a system in which many apparently positive random drug tests are routinely overturned on “technicalities” when appealed to arbitration — where the decision remains confidential — serves the fundamental financial interests of both players and owners.

Think of the impact of this kind of lax, technicality-reliant — but entirely secret — drug  enforcement system:  Word spreads quickly throughout the players: there’s a hole in the system — and the risk of “getting caught” is much lower than it appears from a cursory review of the system. And where the average player perceives that the risk of “getting caught” is substantially reduced, he deduces that —  in light of the extraordinary millions of dollars potentially earned when one performs much better from doping — the risk of doping is a reasonable one to take in the circumstances.

I understand there is speculation required to reach the above conclusions. And consider this — which I learned last night from WEEI’s excellent broadcaster Matt Perreault, who obviously did alot of homework before his show last night: the minor-league Huntsville Stars has produced four big-league MVPs (Canseco, Giambi, Tejada, and Braun), along with Mark McGwire. All five have been implicated in steroid scandal; only Braun still denies juicing.  And the Huntsville Stars’ first baseman, Brendan Katin – a teammate of Braun’s at Miami U – tested positive for testosterone in the minor leagues in 2007, but “got off” as a result of an arbitration appeal run by the MLB system. Sound statistically significant? A coincidence?

I’ll repeat what I said in my last post: I think there’s been a “whole lotta winkin’ goin’ on” amongst players and owners about the actual reality of the drug-testing process. And someone on the inside got sick of the system fooling the public, and “outed” the Braun test early on.  And also “outed” Arbitrator Das, who may have had a long habit of finding “technicalities” to throw out what looked like positive drug tests.

Still a dog and pony show.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Bud Selig, Drug Testing, MLB, MLB Players Association, Ryan Braun and tagged , , , , , , , . Bookmark the permalink.

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