BY:  Richard W. Humphrey

The news broke yesterday that the Brewers’ Ryan Braun, the National League’s Most Valuable Player last year, had won his appeal of MLB’s 50-game suspension for using performance enhancing drugs.  It is the first time that a suspension for failing a drug test has been overturned on appeal.

From the time the suspension was announced, Braun immediately asserted that he had not used PED’s and that he was confident that his appeal would be sustained.  On one hand, Braun doesn’t look like the type.  He has always been a model citizen.  He’s younger than most of the players that have admitted using PED’s.  Consequently, he was tested more stringently in the minor leagues.  He has passed random drug tests since reaching the Major Leagues, including three over the past year, and there has been no material change in the appearance of his body that would lead one to believe that he is on steroids.

On the other hand, fans have heard adamant denials in the past from players such as Roger Clemens and Rafael Palmeiro, who denied using steroids to a Congressional Committee.  No one really believes them.  After testifying on national television to the Congressional Committee, Palmeiro failed a drug test.  It’s easy then to be skeptical of any player’s claims of innocence, including Ryan Braun’s.

The sample in question tested extremely high for testosterone levels.  It wasn’t just a little bit over the acceptable range; it was a multiple, clearly caused by synthetic testerone that wasn’t produced by his body.  Braun’s attorneys attacked the findings on the basis of the chain of evidence.  The collector of the urine specimen took three samples from Brewers’ players on October 1 (a Saturday) after the Brewers playoff game with the Diamondbacks.  It was too late in the day to Fed-Ex them to the testing agency in Montreal.  The agreement between the union and MLB allows for such a delay, indicating that the specimens have to be stored in a “cool, secure place”.  ESPN’s legal analyst Lester Munson indicated that the samples sat in a tupperware container on a desk in the collector’s home for two days prior to being sent.  Cool?  Secure?

It was on this technicality that Braun won his appeal.  Unfortunately for him, being “not guilty” is not the same as being “innocent”.  He looks even more guilty after the ruling.  The panel that heard the appeal consists of a representative from MLB, a representative from the Players’ Union, and a third party arbitrator, which for this case was Shyam Das.  Das has been involved in MLB arbitration for more than a decade and is highly regarded in this capacity.  ESPN’s Buster Olney stated that in every appeal, MLB has voted to sustain the suspension, which is expected, as it was their ruling in the first place.  The MLBPA has voted to repeal the suspension in every case.  The latter is somewhat surprising.  There are a number of players that aren’t cheating by using PED’s, and those players want the cheaters caught to level the playing field.  Indeed this ruling in Braun’s appeal is not universally seen as a win for players by other players.  The decision then in every appeal has come down to the independent third party, who in the past has always ruled with MLB.

Munson did indicate that Braun at one point offered to submit DNA material to be matched against the urine sample that tested positive.  Obviously if it didn’t match, Braun’s case for winning the appeal would be greatly strengthened, and vice-versa.  MLB reportedly turned down this offer; and Munson believes this was a key factor in the third party ruling for Braun.

From one standpoint, the ruling is not a surprise, despite the fact that no other appeal has been upheld.  Normally, the hearings occur and a ruling is issued almost immediately, usually within a day or two.  Braun’s hearing occurred in January, so more than a month has passed prior to the ruling being made public.  Obviously, Braun’s case had some traction for the ruling to take so long to be released.  There was no explanation for the ruling, but Das has 30 days to write an opinion.  Hopefully, that will shed some light on why he ruled in Braun’s favor.  For now however, Braun looks guilty as heck, and lucky to be in Arizona playing baseball because of a technicality; much like a felon that is free because no one read the Miranda Rights to him.

MLB is apparently steamed over the outcome, and is considering a lawsuit to overturn the ruling.  Hopefully, that won’t happen.  There seems little to be gained from pursuing the issue furhter.  MLB and the MLBPA need to re-write the procedures to bring some clarity to the issue.  Unfortunately, there is probably not much Braun can do to make the case that he was really innocent as he won on the basis of procedure rather than on the science involved.

It’s not a good day for baseball all around, except for the Brewers and their fans, who will have their slugger on the field for the first 50 games of the season.  It is probably in the best interest of all concerned to let the matter drop, rather than keep it in the public eye going forward.

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