Ryan Braun just became the first major league baseball player to successfully overturn a positive drug test result on appeal, and based on the immediate reactions in the press and Major League Baseball itself, you'd think the Berlin Wall had just crumbled. But before everyone jumps to the conclusion that baseball's drug policy is flawed, or that this outcome will somehow open up the proverbial floodgates to players wanting to challenge their positive drug test results, let's put it in perspective.
Prior to Braun's appeal of his October 2011 test result, twelve other positive drug test results were upheld on appeal. In terms of batting average, that's .077. By comparison, in our civil justice system, somewhere between ten and twenty percent of cases are reversed on appeal (in batting average that's .100 to .200). And according to this NY Times report, two-thirds of all death sentences are overturned on appeal (.666). So if you're José Canseco planning a comeback, don't get your size small jockstrap out of retirement yet.
If you want to be upset about something here, it should be the comments by Rob Manfred, MLB's Executive Vice-President for Labor Relations & Human Resources, who is an attorney (Hahh-vaad educated) and was one of the three attorneys that presided as arbitrators of the appeal:
Major League Baseball considers the obligations of the Joint Drug Prevention and Treatment Program essential to the integrity of our game, our Clubs[,] and all of the players who take the field. It has always been Major League Baseball’s position that no matter who tests positive, we will exhaust all avenues in pursuit of the appropriate discipline. We have been true to that position in every instance, because baseball fans deserve nothing less.
As a part of our drug testing program, the Commissioner’s Office and the Players Association agreed to a neutral third party review for instances that are under dispute. While we have always respected that process, Major League Baseball vehemently disagrees with the decision rendered today by arbitrator Shyam Das.
The reason that Braun's positive test result was thrown out was that after the tester collected the urine sample, he kept it in his refrigerator over the weekend, and it wasn't actually examined until days later when it was received by the lab in Montreal. Some call that a technicality, but in reality, once a urine sample is 24-hours old its clinical significance is worthless by medical standards.
As attorneys, we are sworn to advocate for truth, justice, and the Federal Rules of Evidence, but based on Manfred's comments, his only concern is imposing punishment, rather than making sure that punishment is first warranted or justified. Moreover, the fact that Manfred called out his colleague, for essentially voting in a manner consistent with well-established legal doctrine, casts serious doubt on his integrity.
Ironically, baseball analyst Tim Kurkjian (@Kurkjian_ESPN), who by the way is not an attorney, hit the ball on the screws in this interview:
Just like in a court of law, both sides had a chance to present evidence, and in this case the evidence went in Ryan Braun's favor.
Did the National League's 2011 Most Valuable Player use banned substances during last season's playoffs? We don't know. After learning about the positive test result from the MLB collection, Braun had a second test performed by an independent laboratory, and that test revealed normal levels of testosterone. Braun also tested negative for banned substances on three other occasions during the 2011 season. That doesn't mean that he was clean when he was tested in early October, but given the circumstances of the first drug test, the results are clinically unreliable, and so punishment would be unjust.
Photo credit: Steve Paluch