A Legal Take on Ryan Braun

[normkent]

by Norm Kent
Vice President, National Organization for the Reform of Marijuana Laws

First, since this is a fantasy board, I want to say that Ryan Braun owes all of us fantasy players an apology.

In his press release today acknowledging the support he had from his family and friends, he forgot to thank all those early-drafting fantasy players who stood by him and selected him in the top 20 picks.

But now let me speak as a constitutional rights lawyer. Neither a technicality nor a loophole today freed Ryan Braun from a 50 game suspension. What saved Braun today was the fact that we leave in a society which preserves due process, insures fairness, and honors agreements.

Drug testing procedures in America are inherently flawed. Every day, using a substantially compromised field test, cops arrest innocent people for purportedly carrying contraband that turns out not to be so. The list and litany of false positives could and do fill a book, and I cite a few examples in a link at the bottom of the page. Beware of Dr. Bronner's natural, herbal, liquid soaps. They could put you in jail.

Nevertheless, in this era of steroids and performance enhancing drugs, major league baseball players and its management negotiated drug-testing protocols to insure the integrity of the game and trust of its fan base. However, as lawyers for the players sat down to work out the drug testing initiatives, it was imperative that mechanisms and processes be implemented that would insure the integrity of drug testing and fairness for both sides.

Scientists and lawyers had seen for years a panoply of poorly administered procedures which compromised the accuracy of results. These included a variety of situations, from not properly storing drug specimens at specific temperatures, to failing to initiate a timely testing of the sample. The reason meticulous guidelines and standards were imposed for all drug testing was because the failure to do so would render the test inherently unreliable, and could very well lead to false positives wrongly accusing an otherwise innocent individual.

The issue today with Ryan Braun is apparently chain-of-custody, but the reason chain-of-custody is critical is because the failure to preserve it exactly could potentially compromise the integrity of the test. That is why the failure to safeguard chain of custody was negotiated as a material factor in relying upon a drug test in the first place- because there is a history of insanely false positives when chain-of-custody protocols are not exactingly followed, or the specimens are not tracked thoroughly.

As the Ryan Braun case unfolds, it appears those procedures, agreed upon in writing by major league baseball and the players’ association, were not followed. He was ‘acquitted’ of wrongdoing not by a technicality. He was ‘acquitted’ of wrongdoing because of the wrongdoing by major league baseball operatives not abiding by the agreement they entered into.

This is not about a player getting off. This is about a contract being honored; about both parties being faithful to the rules and regulations they mutually negotiated before a player’s career could be interrupted and his reputation irreparably stained.

It is not that drug testing lost today. Fairness won. It is not a technicality that saved Ryan Braun. It is that we as a society have preserved due process, and the same procedures that have been used to affirm a dozen previous rulings on steroids, have now been applied to exonerate one. That is the way it should be when one side does not abide by its agreements. This time, it was the owners that lost, but neither did baseball win.

What won was the right of a censured athlete to argue an appeal and mandate that the landlords of the game respect the rights of its tenants pursuant to the terms of a lease they mutually negotiated beforehand.

For more information on how drug testing procedures in America are flawed, visit this article on counterpunch:http://jaablog.jaablaw.com/2011/08/18/f ... ts-fa.aspx

I, for one, should have known better. I should have drafted him in the freaking first round. My bad.

[Money]

by Norm Kent
Vice President, National Organization for the Reform of Marijuana Laws

First, since this is a fantasy board, I want to say that Ryan Braun owes all of us fantasy players an apology.

In his press release today acknowledging the support he had from his family and friends, he forgot to thank all those early-drafting fantasy players who stood by him and selected him in the top 20 picks.

But now let me speak as a constitutional rights lawyer. Neither a technicality nor a loophole today freed Ryan Braun from a 50 game suspension. What saved Braun today was the fact that we leave in a society which preserves due process, insures fairness, and honors agreements.

Drug testing procedures in America are inherently flawed. Every day, using a substantially compromised field test, cops arrest innocent people for purportedly carrying contraband that turns out not to be so. The list and litany of false positives could and do fill a book, and I cite a few examples in a link at the bottom of the page. Beware of Dr. Bronner's natural, herbal, liquid soaps. They could put you in jail.

Nevertheless, in this era of steroids and performance enhancing drugs, major league baseball players and its management negotiated drug-testing protocols to insure the integrity of the game and trust of its fan base. However, as lawyers for the players sat down to work out the drug testing initiatives, it was imperative that mechanisms and processes be implemented that would insure the integrity of drug testing and fairness for both sides.

Scientists and lawyers had seen for years a panoply of poorly administered procedures which compromised the accuracy of results. These included a variety of situations, from not properly storing drug specimens at specific temperatures, to failing to initiate a timely testing of the sample. The reason meticulous guidelines and standards were imposed for all drug testing was because the failure to do so would render the test inherently unreliable, and could very well lead to false positives wrongly accusing an otherwise innocent individual.

The issue today with Ryan Braun is apparently chain-of-custody, but the reason chain-of-custody is critical is because the failure to preserve it exactly could potentially compromise the integrity of the test. That is why the failure to safeguard chain of custody was negotiated as a material factor in relying upon a drug test in the first place- because there is a history of insanely false positives when chain-of-custody protocols are not exactingly followed, or the specimens are not tracked thoroughly.

As the Ryan Braun case unfolds, it appears those procedures, agreed upon in writing by major league baseball and the players’ association, were not followed. He was ‘acquitted’ of wrongdoing not by a technicality. He was ‘acquitted’ of wrongdoing because of the wrongdoing by major league baseball operatives not abiding by the agreement they entered into.

This is not about a player getting off. This is about a contract being honored; about both parties being faithful to the rules and regulations they mutually negotiated before a player’s career could be interrupted and his reputation irreparably stained.

It is not that drug testing lost today. Fairness won. It is not a technicality that saved Ryan Braun. It is that we as a society have preserved due process, and the same procedures that have been used to affirm a dozen previous rulings on steroids, have now been applied to exonerate one. That is the way it should be when one side does not abide by its agreements. This time, it was the owners that lost, but neither did baseball win.

What won was the right of a censured athlete to argue an appeal and mandate that the landlords of the game respect the rights of its tenants pursuant to the terms of a lease they mutually negotiated beforehand.

For more information on how drug testing procedures in America are flawed, visit this article on counterpunch:http://jaablog.jaablaw.com/2011/08/18/f ... ts-fa.aspx

I, for one, should have known better. I should have drafted him in the freaking first round. My bad.

Norm,

What an awesome post. I agree 100% with everything you said.

99.99% sure he's still guilty though.

[Baseball Furies]

Norm,
Great post. Thanks for the info. Interesting stuff.

[rockitsauce]

thats like your opinion..........man.

if I need a lawyer I'm goin' w/ Ron Kuby ! or Bobby P ! of Mighty Jack !

now that I see your "affiliation" I realize why the team u drafted last Sunday sucks so bad, that purple kush musta had u on ur ass.........plus being sandwiched b/w me & Gekko couln't help

* btw, I'd be willing to bet most feel exactly as Joe mentioned above, they know it in their guts - he's guilty.

u know what they call 40,000 lawyers at the bottom of the sea?

a good start

[Greg Ambrosius]

Norm, great post.

Since people like Joe and David believe he still is 99.99% guilty, give me your legal opinion of the test results themselves, if you can. How can he test negative during the season and as he says 25 times before, then have the highest level EVER tested by an MLB player in October and upon request for a followup test a few weeks later have a normal level again? Was the flawed procedure part of this "insanely high" test level?

As you say, everyone (including a flabbergasted MLB) is surprised there was a flaw in the testing process. Why?? As you say, there are screwups all the time there. This place had never lost an appeal because it was so well run, and then we find out someone didn't follow the process correctly and the process wasn't so picture perfect. And maybe, that flaw led to a faulty reading for an innocent person. Why are we so sure the process was perfect when the reading was so ridiculously high??

Anyway, I know as a lawyer it's not your job to find out if he ever was on the juice or not, but I'd be interested in your opinion nonetheless. Maybe you're part of the 0.01 percent.

[Greg Ambrosius]

ESPN's Jayson Stark makes a very good point that it's interesting how MLB has come out so hard in its response against Braun in this decision, when in fact, this was supposed to be a private matter. It's very likely that someone within MLB leaked the results to the media originally and now that this private matter has been resolved MLB continues to treat Braun as if he should pay a price despite the ruling. As Norm said, the agreed upon procedure was followed by both parties, a decision was made, and all of this never should have been discussed in public to begin with. They had agreed upon procedures for how this was to be handled internally between all parties and Braun is now guilty in the public opinion because someone leaked the results before due process ran its course.

MLB shouldn't be trying Braun in the court of public opinion. It needs to accept the decision by the arbitrator and move on. If anything, the process all the way around needs to tighten up so that the next leak doesn't happen. And if Braun is smart, his lawyer will do all he can to find out the source of the leak and what the intention of that leak was. He's lost millions of dollars because of it and a reputation that is stained for the rest of his career.

[Hells Satans]

ESPN's Jayson Stark makes a very good point that it's interesting how MLB has come out so hard in its response against Braun in this decision, when in fact, this was supposed to be a private matter. It's very likely that someone within MLB leaked the results to the media originally and now that this private matter has been resolved MLB continues to treat Braun as if he should pay a price despite the ruling. As Norm said, the agreed upon procedure was followed by both parties, a decision was made, and all of this never should have been discussed in public to begin with. They had agreed upon procedures for how this was to be handled internally between all parties and Braun is now guilty in the public opinion because someone leaked the results before due process ran its course.

MLB shouldn't be trying Braun in the court of public opinion. It needs to accept the decision by the arbitrator and move on. If anything, the process all the way around needs to tighten up so that the next leak doesn't happen. And if Braun is smart, his lawyer will do all he can to find out the source of the leak and what the intention of that leak was. He's lost millions of dollars because of it and a reputation that is stained for the rest of his career.

Explain to me what possible reason MLB would have for leaking the results? I would be willing to bet just about everything I own that the leak came from Braun's side.

[Greg Ambrosius]

ESPN's Jayson Stark makes a very good point that it's interesting how MLB has come out so hard in its response against Braun in this decision, when in fact, this was supposed to be a private matter. It's very likely that someone within MLB leaked the results to the media originally and now that this private matter has been resolved MLB continues to treat Braun as if he should pay a price despite the ruling. As Norm said, the agreed upon procedure was followed by both parties, a decision was made, and all of this never should have been discussed in public to begin with. They had agreed upon procedures for how this was to be handled internally between all parties and Braun is now guilty in the public opinion because someone leaked the results before due process ran its course.

MLB shouldn't be trying Braun in the court of public opinion. It needs to accept the decision by the arbitrator and move on. If anything, the process all the way around needs to tighten up so that the next leak doesn't happen. And if Braun is smart, his lawyer will do all he can to find out the source of the leak and what the intention of that leak was. He's lost millions of dollars because of it and a reputation that is stained for the rest of his career.

Explain to me what possible reason MLB would have for leaking the results? I would be willing to bet just about everything I own that the leak came from Braun's side.

And what would Braun have to gain from leaking this info?? Three months of being found guilty in the court of public opinion when he truly felt he was innocent? Nope, don't bet the life savings Bob. It didn't come from the top of MLB, but someone from within likely had loose lips to a reporter. Only Braun and the league knew the first result, so it's one or the other, right?

[Hells Satans]

FWIW, if there was a violation of protocol in the testing process, I agree that he should not be suspended. As for why he never tested positive before...who knows. It could be that he's completely innocent. It could be that he got lucky. It could be that he switched what he was using. There's no way to know, but the absence of prior positives doesn't make this one was a false positive. Maybe something will come out about the process here that supports the view that this one was a false positive, but I haven't seen it yet.

I doubt there is ANY way ESPN runs with the initial story unless their source was an extremely high-level person at MLB, the Brewers, or Braun's agents, so I think you can assume this wasn't some low-level person. You always have to look at who has the most to gain in these situations, and as best I can deduce, MLB has absolutely nothing it can gain from leaking. At the point the positive test comes back, everyone knows there will be an appeal hearing. As to the decision to leak at that point, there are really 4 scenarios for MLB:

1.) You leak the result and it gets upheld
2.) You leak the result and it gets overturned.
3.) You don't leak the result and it gets upheld
4.) You don't leak the result and it gets overturned.

By far the WORST case scenario is number 2, which is exactly what happened here. You damage the NL MVP without actually getting a "conviction." You cast doubt on the testing process. You create precedent for beating the tests. You open yourself up for lawsuits. And you do this all publicly.

The best case scenarios are No. 3 and 4. MLB doesn't want to go after Braun, who is an elite, popular player, but they do need to ensure that the sanctity of the test is upheld. There's no incentive for MLB to this publicly. If they win, he gets suspended and the process works. If they lose, no one ever needs to know about it. Scenario 1 is the only one where the leak doesn't potentially hurt them, but what is the upside? The downside is that you lose and you deal with scenario 2. DOesn't seem worth it to me.

Braun, on the other hand, almost certainly was being advised that he was going to lose. So, the question is, does he say nothing for two months and wait till he loses? By getting out in it early, he can try protect his legacy while swinging public opinion. Even if he gets suspended, if he's able to use the media to cast as much doubt on the process BEFORE the appeal, it goes a long way to getting him viewed differently than the other juicers (which was effectively done, IMO). That's less effective if no one knows about the test until after the appeals process has concluded and he's been suspended. By leaking early, he's able to get out adamant denials, stories about other tests he's passed, etc.

In other words, Braun's leaking didn't have as much to do with his appeal as it did with protecting his legacy. Disputing the results after you lose the appeal isn't effective. Doing it beforehand can be.

[Greg Ambrosius]

All plausible Bob. I won't fight you on any of the possibilities.

ESPN's Lester Munson just said on ESPN 2 that there is now doubt on even if the urine sample was Braun's. He's also saying that the sample was left on this guy's desk for two days, not refrigerated like was first reported. There's a screwup here and enough doubt to say, FAULTY TEST. The more facts that come out the more we'll know, but there sure does seem like someone screwed up and it might not have been Braun.

[Money Men]

there is now doubt on even if the urine sample was Braun's

That explains it. Had to be T Plush's urine.

[Hells Satans]

All plausible Bob. I won't fight you on any of the possibilities.

ESPN's Lester Munson just said on ESPN 2 that there is now doubt on even if the urine sample was Braun's. He's also saying that the sample was left on this guy's desk for two days, not refrigerated like was first reported. There's a screwup here and enough doubt to say, FAULTY TEST. The more facts that come out the more we'll know, but there sure does seem like someone screwed up and it might not have been Braun.

Certainly possible, but all you're going to hear from this point on is spin from both sides. Now that the hearing is over, both sides can pretty much say whatever they want without repercussions. I don't believe anything either of them say from this point forward.

[Outlaw]

Upon first hearing the news and the supposed reason he was found not guilty, my first thought was, someone, for some reason wanted to set him up. Why? Who? I am sure eventually the truth will come out. There is no way you take someone's urine sample to a private home, store it in that persons home refrigerator over a weekend, then send it 2 days later.

So I'm guessing it is a made up reason or something more sinister.

So here is a supposed time line

1. Braun pees Friday into the bottle
2. Tech prepares it for shipping.
3. Shipper picks it up and realizes shipping depot is closed late friday afternoon
4. Shipping person brings to his home and puts in refrigerator until monday when he then ships it to lab

Now what could happen in that scenario

1. Shipper person go's for a few beers friday night and sample finally gets to his house some 8 hrs after being taken and not being refrigerated for those 8 hrs.

or more likely

2. Shipper person brings it to someone else, who has all the neccessary packaging, lableing and sceurity tags to take the original sample and mix it with the supposed drug.... so that it looks all original again and then gives it back to the shipper person. The excuse the shipping facility was closed was needed to cover this scenario.

there is no way Braun has the most ever level of whatever drug it was in all of history. The person who may ahve done the spiking just put too much of the drug in Brauns sample which led to the off the charts results.

Just my two sense on this, but lets here some other Why? Who? How? When?

[Navel Lint]

Now what could happen in that scenario

1. Shipper person go's for a few beers friday night and sample finally gets to his house some 8 hrs after being taken and not being refrigerated for those 8 hrs.




or more likely

2. Shipper person brings it to someone else, who has all the neccessary packaging, lableing and sceurity tags to take the original sample and mix it with the supposed drug.... so that it looks all original again and then gives it back to the shipper person. The excuse the shipping facility was closed was needed to cover this scenario.

there is no way Braun has the most ever level of whatever drug it was in all of history. The person who may ahve done the spiking just put too much of the drug in Brauns sample which led to the off the charts results.

Just my two sense on this, but lets here some other Why? Who? How? When?

1. I'm not sure why people are hung up on the sample not being refrigerated immediately. If the sample was taken in the morning, it might not have been picked up by FedEx until later that afternoon, then driven by truck to a local FedEx hub airport, then flown to Memphis (FedEx main hub), then flown to the state (CA or NY) of the testing facility, then put on a truck for delivery the next day or Mon. Unless it was packed in ice to begin with (which would render the original complaint about 8 hours invalid), that is probably faster than it would have been otherwise.


2. I wont say your scenario is impossible, but highly unlikely. Urine samples are split into two, sample bottles are sealed, number coded with identifying paperwork, the seal on the bottle is usually signed by the sample giver, and then sent off. Both samples would've had to have been altered in exactly the same manner to make your scenario possible.

[Rog]

as of roto world this morning
Ryan Braun - OF - Brewers

ESPN.com reports that MLB is considering suing in federal court to reverse baseball arbitrator Shyam Das' decision to overturn Ryan Braun's 50-game suspension.
MLB is on record as "vehemently disagreeing" with Das' decision and evidently is weighing the possibility of taking a big step to get their original ruling upheld. Before taking such action, though, they'll reportedly wait until Das issues his written report within the next week or so and their lawyers have had a chance to review it. Braun's case was the first time a player successfully challenged a drug-related penalty in a grievance.
Source: ESPN.com
Feb 24 - 11:35
Sounds to me that mlb is pretty pissed that braun tested positve and got away with it because of a technicallity.
It is almost like in the movies when a big case gets thrown out because somebody forgot to read somebody their rights?
Well at least we now know what the special circumstances surrounding the case were all about.
Not the extreme levels of testosterone but that it wasnt handled properly.

well at least he isnt sitting at a table and waving a finger at everybody

[The Mighty Men]

MLB will lose, too. An arbitration decision is nearly impossible to overturn. You basically need to prove that fraud occurred, that the arbitrator exceeded his powers (not possible here), or that the decision has absolutely no basis.

Draft Braun with confidence.

[Tom Kessenich]

I think Braun is the one who should be doing the suing. He should demand a sit-down with Selig and ask him why a "confidential" report was leaked and who was responsible? It sure wasn't anyone in Braun's camp so it had to be someone connected in some fashion to MLB.

[Money]

I think Braun is the one who should be doing the suing. He should demand a sit-down with Selig and ask him why a "confidential" report was leaked and who was responsible? It sure wasn't anyone in Braun's camp so it had to be someone connected in some fashion to MLB.

I for one think all the positive tests in the past should be public. In this instance he was denied his due process under the rules, he has a legitimate beef. With that said it is what it is and the info is out there.

You boys in Wisconsin are way to close to this thing to be objective, but the discussion wouldn't be the same without you

[The Mighty Men]

I think Braun is the one who should be doing the suing. He should demand a sit-down with Selig and ask him why a "confidential" report was leaked and who was responsible? It sure wasn't anyone in Braun's camp so it had to be someone connected in some fashion to MLB.

That's a good point. IF MLB wants to play hardball, and MLB was responsible for leaking the report, then sue MLB for breach of contract/confidentiality if he is able, and claim his injured reputation as damages. How do you value that after an MVP season? I say $$$.

[rockitsauce]

People are so predictable. ESPN's latest poll question split exactly as you'd imagine. Basically 1 of 3 choices, you are convinced Braun did PEDS, did not, or are unsure. Guess which is the ONLY state that thinks he's innocent ? Reminds me of how the whole country hated Bonds but parts of California.

How flawed is the testing system? If 1 guy is voting for the player & the other the company (mlb) BEFORE any evidence is even presented, it's just known that thats the way they'll vote, doesn't that SCREAM to you that something is wrong ? These tests should not be shrouded in so much secrecy. If there was more transparency people would have more confidence in the whole process. As it is now everyone loses.

Personally if it wasn't for the fact that I empathasize w/ the clean players who'd rather not jeapordize their health, I'd love to see all PEDS made legal. Knock yourselves out guys, just don't going crying later about suing anybody. It's somewhat similar to former NFL players suing now b/c of concussion related injuries during their careers. It never dawned on anyone that they might get hurt playing a game that resembles being in a car crash every play

[Edwards Kings]

All plausible Bob. I won't fight you on any of the possibilities.

ESPN's Lester Munson just said on ESPN 2 that there is now doubt on even if the urine sample was Braun's. He's also saying that the sample was left on this guy's desk for two days, not refrigerated like was first reported. There's a screwup here and enough doubt to say, FAULTY TEST. The more facts that come out the more we'll know, but there sure does seem like someone screwed up and it might not have been Braun.

Greg,

What will be the procedure for random testing in Vegas? And we will need the report leaked so we can know who to contact for the good stuff.

[Hells Satans]

I think Braun is the one who should be doing the suing. He should demand a sit-down with Selig and ask him why a "confidential" report was leaked and who was responsible? It sure wasn't anyone in Braun's camp so it had to be someone connected in some fashion to MLB.

That's a good point. IF MLB wants to play hardball, and MLB was responsible for leaking the report, then sue MLB for breach of contract/confidentiality if he is able, and claim his injured reputation as damages. How do you value that after an MVP season? I say $$$.

Braun isn't going to sue because it was his agency that leaked it.

[The Mighty Men]

I think Braun is the one who should be doing the suing. He should demand a sit-down with Selig and ask him why a "confidential" report was leaked and who was responsible? It sure wasn't anyone in Braun's camp so it had to be someone connected in some fashion to MLB.

That's a good point. IF MLB wants to play hardball, and MLB was responsible for leaking the report, then sue MLB for breach of contract/confidentiality if he is able, and claim his injured reputation as damages. How do you value that after an MVP season? I say $$$.

Braun isn't going to sue because it was his agency that leaked it.

Why would they do that?

How did you find that out, or is it your best guess?

[chest .rockwell]

Norm well stated...

The guy has rights and those rights were violated in the process. I collect MVP's on the sweet spot of baseballs. I mentioned to a friend of mine the other day that I did not have Braun and asked in our dorky code words whether or not he is tough... For example if you collect CY Youngs Steve Stone and Mike Marshall are tough (next to impossible to get them to sign). He sent me this youtube clip with a line of you decide for yourself.

Seems like a great guy.


http://www.youtube.com/watch?v=GbhsIagVW_c

[BK METS]

After watching Ryan Braun's statement, which obviously was proclaiming innocence, but was suprisingly revealing and detailed as to his defense, facts regarding the ability to tamper with samples, and undisclosed motivation for the sample to be tampered with, I am going to put my support with Braun. I understand that we will probably never know what actually happened and if the sample was tampered with. But, the bottom line is, there is a decent chance that the sample was tampered with based upon what he said were "bio-chemists" testimony that it would be pretty simple to do. I guess we will never be sure and maybe this does open up concerns about future testing, but some of the facts that he revealed in his statement were very convincing. Maybe I am just being naive. But, I believe he is innocent and was wrongfully accused.