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Tue, Oct. 22

Column: MLB swings and misses in entire Braun episode

Paul Connors/The Associated Press<br>Brewers outfielder Ryan Braun waits for his turn to take batting practice this past Saturday at spring training in Phoenix. The person who collected Braun's urine samples that tested positive for elevated testosterone levels says he followed the collection program's protocol. Dino Laurenzi Jr. says he has handled more than 600 samples for Major League Baseball. Braun's 50-game suspension was overturned last week.

Paul Connors/The Associated Press<br>Brewers outfielder Ryan Braun waits for his turn to take batting practice this past Saturday at spring training in Phoenix. The person who collected Braun's urine samples that tested positive for elevated testosterone levels says he followed the collection program's protocol. Dino Laurenzi Jr. says he has handled more than 600 samples for Major League Baseball. Braun's 50-game suspension was overturned last week.

Whether you call it justice or injustice, an independent arbitrator overturned Milwaukee Brewers outfielder Ryan Braun's positive drug test on technical grounds. The arbitrator ruled that the sample wasn't transported to the testing facility in a timely manner, what lawyers refer to as a failure in the chain of custody, as required under the drug testing program's protocol.

While Braun was understandably ecstatic, MLB was positively livid. Executive vice president Rob Manfred said in a statement, "...While we have always respected [the drug testing program] Major League Baseball vehemently disagrees with the decision rendered today by arbitrator Shyam Das." What Manfred and MLB don't seem to understand is that if you respect the process then you must likewise respect the decision. All trial attorneys, and Manfred is a lawyer, come to that realization after they lose their first case, if not before.

MLB's righteous indignation is hypocritical. This is the same MLB who agreed to allow Manny Ramirez to serve a mere 50-game suspension at the start of the 2012 season after the discredited slugger tested positive for a second time last spring. The public rationale was that Manny "retired" rather than face the music and sit out 100 games, the stated suspension for a second violation of MLB's drug testing program. But if you follow that logic to its irrational conclusion, Manny shouldn't have to sit out any games this year because he deserted the Tampa Bay Rays with more than 100 games left in the 2011 season.

Braun's attorneys argued the only issue they could challenge under the drug testing system currently in place. Players have strict liability for everything in their system, regardless of how it got there. Unlike most criminal matters, intent is not an element of liability. Furthermore, in a criminal proceeding the defendant (player) is presumed innocent until proven guilty. Under MLB's drug testing procedure, the reverse is true. Players are presumed guilty and must prove their innocence, an impossible burden. To paraphrase Braun's post-decision comments, if players are held to strict liability, shouldn't everyone else be held strictly liable for any breach of protocol in the drug testing program?

MLB is right in one respect. The system failed, but not for the reason Manfred suggested. The drug testing program agreed to by MLB and the players' association requires absolute adherence to confidentiality. Players who test positive are entitled to an appeal and no public acknowledgment of a positive test is permitted until after the appeal process is complete and the player is disciplined under the program. In Braun's case, word of the positive test was leaked to the press in December, two months after he gave a sample. Neither MLB nor the players' association claims to know who the culprit is, but they have apparently exonerated each other.

However, if Manfred is genuinely committed to the system agreed to by the owners and players, he should dedicate his time and effort to uncovering the snitch, rather than throwing the system under the bus.

Once you agree to a drug testing program, you must embrace the following truths: Not every druggie will test positive. Some tests will result in false positives. The system will not always operate as designed because it is dependent on both technology and humans and neither is infallible.

Regardless of how Braun's appeal had been decided, the system worked in some respects and not in others. The breach of confidentiality was unconscionable. The chain of custody for Braun's sample was broken, which created doubt in the veracity of the test. A player who tests positive is allowed to appeal and argue his case, as did Braun. The decision on appeal falls to an independent arbitrator who, for the first time in Major League history, ruled for the player (a Minor League player had previously been successful).

Unfortunately, Braun's reputation is left to a mostly unsympathetic media that, after ignoring PED use for almost two decades, now feasts on rumor and innuendo (see: Bagwell, Jeff), and to the fans, some of whom are supportive, others not. He never should have been fed to the wolves. If there is a legitimate criticism of the system, that's it. An injustice has been committed and Manfred and MLB should focus on preventing a repeat rather than criticizing the arbitrator.

Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is an Associate Professor of Sport Management and Sport Law at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at jkobritz@mindspring.com.

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