Braun ruling deals blow to Selig’s testing program
“The only way to finally get to the root problem here and solve it is through the toughest kind of testing program.” – Bud Selig, March 19, 2005
The program failed Bud Selig. It’s the program he insisted on and rubber-stamped. He believed it would save his sport and salvage his reputation. Put a stringent performance-enhancing drug policy in place – one that runs 18,175 words long and tries to cover every conceivable slice of conceivability – and Congress no longer would shame him and baseball like it did that day seven years ago.
Ryan Braun beat the program Thursday. His lawyers never bothered arguing whether or not Braun had taken the synthetic testosterone that showed up in his urine during the 2011 playoffs. They argued about the urine that showed up in the cup, which Braun signed to affirm had been sealed and packaged correctly. And they argued about the cup that went into a box that was supposed to go to FedEx that Saturday night. And they argued that because the FedEx store was closed and the test collector took the sample home and put it in his refrigerator until Monday – the standard-operating procedure in every major doping program across the world but one not spelled out distinctly among Selig’s 18,175 words – that the sample did not follow the proper chain of custody and thus was invalid.
And so it was.
Make no mistake: This was a technicality. It was a loophole. Most of all, it was brilliant lawyering by Braun’s attorneys. Hundreds of tests had been handled in exactly the same manner in baseball and never before had the players’ union protested their accuracy. Sources from MLB and the union told Yahoo! Sports the chain-of-custody section of the joint-drug agreement is likely to be rewritten to ensure that a defense similar to Braun’s would have no legs. Because even some inside baseball who should be on Braun’s side – players, agents and other officials – see his prevailing as a Pyrrhic victory.
Baseball for years has fought its past. Players doped. Records fell. Trust eroded. No matter one’s moral judgment of PEDs, baseball is better when the talk and storylines converge on the product, not injections, patches and creams. Players joke about how they know the program isn’t working because so few have been caught in recent years, but MLB pursuing a case against Braun – the reigning National League MVP and savior of the team Selig once owned, the Milwaukee Brewers – proved the sport would bare its teeth when appropriate.
To lose for the first time in arbitration, then, and in such fashion no less, devastated those in baseball committed to making the game as clean as possible. They believed it an open-and-shut case. Braun’s testosterone-to-epitestosterone ratio was nearly 30:1. A 4:1 ratio is the threshold for a positive and the 50-game suspension that accompanies. Braun’s defense didn’t try to explain why the test found synthetic testosterone. It read deep into Section XI of the program – “PROCEDURES AFTER COLLECTION” – found a weakness and exploited it enough to convince independent arbitrator Shyam Das to absolve Braun.
Honing in on that rule was the most inspired part of a defense that grew even more difficult upon the leaking of the positive test to ESPN in December. The chain of custody – how the sample is taken and handled to the point of delivery to the testing laboratory in Montreal – is imperative to the sanctity of any program. Casting chain-of-custody doubt is often an athlete’s best chance at absolution. Braun hired the right people. They convinced Das that even though the collector had stored the samples “in a cool and secure location,” as the program advises, it was not sufficient to maintaining chain of custody.
“This stuff happens around the world all the time,” said Travis Tygart, the CEO of the United States Anti-Doping Association. “They’re collected at people’s homes after the UPS or FedEx or DHL is closed. The DCO (doping-control officer) keeps it with them. These are well-trained people whose job it is to maintain it.”
According to baseball’s rules – or at least Das’ interpretation of them – protocol in other sports did not matter to baseball. Nor did the security seals on Braun’s two tamper-resistant samples remaining in place and the collection agent testifying at the arbitration hearing that the samples had remained untouched. Ultimately, what mattered were a FedEx store’s hours and how if one in Milwaukee was open on the Saturday night after Game 1 of the NL Division Series, Braun may have arrived at spring training Friday staring at a suspension.
“This,” one baseball official said, “is like a criminal getting off because he wasn’t read his Miranda rights.”
That’s an understandable comparison, though it neglects an important aspect of the Braun case: Had his lawyers not chosen to use the chain-of-custody argument, they could have implemented another defense – perhaps one that was similarly effective. MLB and the union agreed to this particular process because players deserve fair trials within the rules. Braun received his, and because the rules were not explicit enough, he prevailed.
Baseball may not like it and may appeal. And Tygart may say: “It’s a kick in the gut to clean athletes.” And one GM may express his sentiments in a simple text message: “Braun, ugh.” But the reality after Thursday’s decision remains: Even though a banned PED showed up in Ryan Braun’s urine, baseball cannot recognize him as a PED user. And because such a judgment was culled from the minutiae of the sport’s own program, that hurts more than Rafael Palmeiro, more than Manny Ramirez, more than A-Rod or Roger Clemens or Mark McGwire or any of the other players linked to PEDs.
This was supposed to prove testing works. Instead, it exposed the program’s fallibility.
No longer is there any incentive for Braun to explain away his T:E ratio or the testosterone in his urine, not when he can claim innocence. He won Thursday, though that’s not the real shame of the Braun case.
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It’s that for almost seven years, ever since Congress fricasseed Selig and embarrassed the sport, baseball has tried to clean itself up. And that no matter how hard it tries, no matter how noble its intentions, no matter how much it cares, baseball’s War on Drugs may be just as futile as America’s.
Bud Selig said he wanted the toughest. He got it. And it still wasn’t tough enough.
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