The Saga of Ryan Braun: The Devil is in the Details

All is quiet on the offseason front for the Cardinals.  Because there is not a lot of news, there is not a lot to talk about until Spring Training.  For that reason, I am going to go off on a topic that is not about the Cardinals specifically but does have some potential impact on them for the 2012 season.  The topic is the pending PEDs issue with Ryan Braun of the Milwaukee Brewers, one of the Cardinals’ toughest rivals in the NL Central.  The basics of this story is known to all who care to know about it.  I am going to focus on two issues involved, the appeals process, which is currently pending for Braun, and the issue of confidentiality.

If you don’t know it already from reading my bio, I am a licensed attorney.  As an attorney, my interest is in the legal issues involved and I will be addressing the story from that angle.  However, there are baseball issues involved as well and I will also be touching on them as it relates to the Cardinals.

Major League Baseball has a policy banning the use of certain substances by players, often referred to by the moniker PEDs (Performance Enhancing Drugs).  The policy specifically lists substances which are prohibited by the policy.  The actual policy can be found here.  It is this document that I have used as a basis for my post. Because the actual policy is pretty short on specifics, and I have no specific knowledge of the actual practice of MLB in implementing this policy, I have had to use my legal background to make assumptions to fill in the blanks. It is very important that the reader know this because I don’t want anyone to be misled by anything I say here.  I am giving an opinion only, and what I say must be taken in that light.

Rather than take the time and word space to outline the procedures involved in the MLB policy, I will leave it to the reader to read the policy to determine that.  Ryan Braun appealed the positive test, that much we know.  We also know that he recently had his administrative hearing before a panel of arbitrators as outlined in the policy. What we don’t know is what those arbitrators heard and what their decision is. There have been a lot of rumors swirling over how exactly Braun will try to prove his innocence.  One avenue available to him is to challenge the test itself.  I can tell you as someone who has knowledge of how drug testing works from my work as an attorney, this ain’t going to be easy.  My professional experience with drug testing comes from the business world, not MLB, but drug testing is drug testing.  Labs who do this kind of testing have set procedures that they all follow to the letter; not following them could result in loss of the lab’s certification to conduct this type of testing, which would result in loss of millions of dollars in revenue.  MLB uses a lab in Montreal that is certified by the World Anti-Doping Agency, and at least according to sources at ESPN has an international reputation for professionalism. These labs rarely make errors in the testing procedures themselves.  If there is an error, it usually involves what is called  a false positive result.  These errors do not usually come from the act of testing itself but come from the sample being tested.  Sometimes substances that are ingested but are not the substance being tested for can create a false positive test.  I once had a case involving a gentleman who tested positive for marijuana, but come to find out he had ingested a legal herbal substance that if ingested in enough quantities can mimic marijuana on a drug test.  These types of errors can be prevented if all substances ingested by the person being tested are revealed at the time the test is done. This often does not happen because the person either forgets they ingested the substance, or does not realize the substance could affect the results of the test.  There is plenty of controversy concerning the actual rate of false positive tests in drug testing, but the fact remains that they do occur.

So, is Braun attacking the test itself, perhaps claiming a false positive result?  If so, then that is quite a battle he is taking on.  From all that we have heard, the amount of the substance Braun tested positive for was present in extremely high amounts. If that is true, the likelihood of a false positive test seems remote.  But there are a lot of unknowns here.  What did Braun ingest to cause such a result?  This is important because lack of intent is not a defense under MLB’s policy.  If Braun ingested something such as a supplement that caused the test result, the defense that he didn’t know the supplement would cause a positive test result and thus he had no intent will probably not wash.  There was some talk that Braun’s defense was going to be that he was being treated for a medical condition.  If that is the case, that defense probably won’t succeed unless the medical condition was revealed at the time of the testing and somehow that treatment was not taken into account by the lab performing the test.  However, if Braun ingested something common, such as a food item, that was tainted with something that caused the positive result, then he might have a case.

Whatever defense Braun pursued, we should know the outcome of the arbitration hearing within a few weeks. Will Braun be exonerated?  Or will he, as many experts expect, join the list of players who have tested positive and have failed to win their appeals.  No player has succeeded to this point.  Will Braun be the first?  Stay tuned.

Now, I want to briefly cover another issue involved in this controversy which has gotten less attention but which I think is important and that is the issue of confidentiality.  MLB’s policy prohibits the Office of the Commissioner, the Association, the committee that administers the program, Club personnel and all of their member, affiliates, agents, consultants and employees from disclosing information about the player’s test results.  Obviously, somebody disclosed because we all know about it.  If that someone was covered under the confidentiality provision of the policy, that someone is in a heap of trouble.  The policy does not set out what the enforcement of the provision is.  It could be a legal action of some sort, but if that were the case, the filing of such an action would become public record.  If MLB  or some other interested party with standing to pursue the matter (such as Braun himself) wanted to keep the issue under wraps this would not be a wise move.  Perhaps more likely the person would receive a fine and/or loss of his/her job.   If the offending party happened to be someone affiliated with the lab or some healthcare provider involved with the matter, a complaint could be filed under the Health Insurance Portability and Accountability Act (HIPAA).  Contrary to some belief not all disclosures of private health information violate HIPAA.  Only those unauthorized disclosures by those employed in the healthcare industry are covered under its provisions.  Third party confidentiality can be contracted, and thus enforced contractually, but is not enforced under HIPAA.  It is unfortunate that the news of Braun’s positive test was revealed.  Hopefully, the offending party has or will be uncovered, and punished accordingly.

If you have managed to slog though all of that to get to this point, I will now tie this all in with the Cardinals.  Ryan Braun’s potential absence from the Brewer’s lineup for 50 games will be a tremendous advantage to the Cardinals. Braun is arguably the best player in the Brewer’s lineup and 50 games is almost a third of the season.  With Prince Fielder no longer with the club and Braun sidelined the Brewers will have to rely on their pitching to keep them in the race.  Even the addition of Aramis Ramirez will not be enough in my opinion to make up the loss of offensive punch for the Brewers.  The Cardinals will need to take advantage of this by coming out strong at the start of the season.   This is an opportunity for the Cardinals that they must take advantage of.  Though the Reds are arguably a better team now than they were in 2011, I think the Brewers are still the team that will be the Cardinals’ closest rival for the NL Central title.  While this whole mess with Braun is unfortunate both for him and the Brewers, it is an opportunity that must be capitalized on by the Cardinals.

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