~ A Mediator's Musings ~

March 6, 2012 ~ Ryan Braun and Major League Baseball:
A Mediator’s View

Ryan Braun has become the first major league baseball player to have tested “positive” for presence of a “performance enhancing substance” meeting the prescribed testing levels under Major League Baseball’s drug program and obtained a ruling from the Arbitration Panel1 that overruled the imposition of the discipline imposed for the first positive test result—a 50 game suspension. Ryan Braun is not just any player. He is the incumbent Most Valuable Player of the National League and is an extremely popular young star, intelligent, well-spoken and magnetic—exactly the kind of player that MLB wants to hold out as showing the best of the sport. The sound and fury2 arising from the Arbitration Panel’s decision in the media and the blogosphere has been almost deafening, but, really, how important is this case? And what does it signify? I think that close examination will show that, in the big picture, it signifies nothing or close to nothing.

It does signify, though, that the Program’s rules on confidentiality look pretty worthless. The Program document provides that “The confidentiality of the Players’ participation in the Program is essential to the Program’s success” and contains a detailed specification of the procedures intended to implement that policy. Someone leaked the results of Braun’s test to a pair of ESPN reporters in December, requiring Braun to respond publicly, and after that, any pretense of confidentiality became a joke. We had leaks concerning the details of Braun’s case at the arbitration hearing, leaks concerning the behavior of the specimen collector assigned to collect Braun’s urine sample and send it to the laboratory (requiring him to respond publicly to accusations of misconduct), and leaks concerning almost every step of the process. The Program itself provides that “If the [Arbitration] Panel determines that no discipline is appropriate [as it did in Braun’s case], all aspects of the proceedings shall remain confidential” (my emphasis). Sure. MLB officials have publicly expressed vehement disagreement with the outcome of the Panel’s deliberations and evidently its senior officials have privately expressed their anger, but they, the Players Association and Ryan Braun should really be irate at the source of the leak(s)3. If they do nothing, the confidentiality provisions of the Program will look like empty words.

That’s the easy part.

We don’t really know—and may never know—everything that Braun put forth in his attack on the test result and the process; as noted above, that’s supposed to be confidential. The rules pertaining to the arbitration process in the drug program document require a written opinion from the Arbitration Panel within 30 days after it tells the parties its decision, but do not require that opinion to have any particular level of detail or explanation. And that opinion is supposed to be confidential, although with all the previous leaks and publicity, MLB and the Players Association may elect to make the opinion public. What the press has reported is that Braun’s attorneys argued that the sample collector failed to follow the required procedures by holding the sample from Saturday, the day he took the sample at Miller Park, until Monday before delivering it to a FedEx office for shipment to the laboratory, thus violating the program’s requirement that the samples should be sent by FedEx on the same day they are collected absent unusual circumstances; this failure to follow the rules fatally tainted the process. Most of the reports assume that the Panel agreed with Braun on this issue and made its decision for this reason. MLB and the collector evidently asserted that the circumstances were sufficiently unusual to permit the delay (that the FedEx offices were closed by the time he could have gone there after he finished his duties at the ballpark) and that the sample was not compromised in any event. There have also been reports that the Braun team also argued that there was no proof he had taken a prohibited substance and that the test results were so out of line that the sample had to be defective. We don’t know and may never know exactly why the Panel decided as it did.

The decision has given rise to all kinds of criticism from a lot of different points of view. Charles Pierce in Grantland says that excusing Braun on what appears to be a technicality simply proves again that the entire drug program should be done away with—athletes should be able to ingest whatever they want without penalty. Mike LoPresti of USA Today simply expresses dismay that the Braun case apparently was decided on a technicality, that it appears the integrity of baseball rests on the hours of a FedEx office and says that MLB champions its drug program as “fair, effective, efficient and definitive,” which the Braun case indicates it isn’t. Bill Dwyer of the Los Angeles Times suggests that the result puts the entire drug program into question. One (apparently serious) suggestion is that Shyam Das, the neutral arbitrator, decided as he did in order to preserve his job as arbitrator.

So what do we make of all this?

In the first place, it’s pretty clear that only a star like Ryan Braun would have the resources to hire the skilled and expensive attorneys to do the undoubtedly enormous amount of work that was needed to prevail in this case. And it will be a rare player at that level who will allow himself to be put in a similar situation in the future. Braun may have won his case, but he could easily have lost; it will be a lesson to the other players to follow the rules with care. The thought that the Braun case proves that the system is fatally flawed seems more than a little extreme4. Any system of rules written by human beings will have flaws that experience will expose; it will be easy for MLB and the Association to clarify the procedures for handling the samples so something like what happened in the Braun case does not happen again. You can be sure, however, that something will arise at some time in the future that someone didn’t think of and that doesn’t follow the rules exactly, and the Arbitration Panel will again have to determine the consequences. That’s the way any system of rules works, whether the rules are created by law or by contract. Finally, although MLB expresses great dismay at the result of the arbitration, Bud Selig and his compadres should secretly be raising glasses of champagne. It looks far worse for the sport to have your MVP, publicly viewed as intelligent and classy, sit out the first 50 games of the season for a drug violation than to have him get off on what could be called a technicality. MLB has the best of both worlds: it can continue to defend the drug program and its administration publicly without being stuck with a result that’s bad for the sport and their business. They should really be much more upset about the leak of the test result and the publicity surrounding the Arbitration Panel and its proceedings.

Interestingly, the Braun case highlights how an arbitration procedure differs from other forms of dispute resolution (such as litigation) and what its advantages and disadvantages are, in baseball and elsewhere:

• It can be completed quickly. The decision-makers, the arbitrators, answer only to the parties and can hear the case as soon as the parties are ready, unlike a court, which has a docket of other cases that take priority. Can you imagine waiting for a trial in court to decide whether Ryan Braun can play baseball?

• The proceedings can be confidential—as they were supposed to have been here. A judicial trial occurs in a public courtroom.

• The procedures are streamlined—the rules of evidence can be relaxed and discovery far more limited. Thus, the process can be completed much more quickly, and, as a practical matter, the arbitrators may hear things that a judge wouldn’t.

• The arbitrators’ decision is essentially unreviewable and unappealable. The statutory grounds for vacating an award include only such things as corruption or fraud, arbitrator partiality, or the arbitrators’ exceeding their powers. A party cannot have an award vacated on any of the usual grounds for judicial appeals—that the decision-maker misapplied the law or disregarded the evidence. In the Braun case, that means that MLB is very unlikely go to court to try to vacate the Panel’s decision, even if it were inclined to do so, and if it does, is almost certain to lose.

• Because the arbitrators’ decision is essentially unreviewable and unappealable, they have great discretion in what they decide and how they decide it. They don’t have to follow the law (although they are supposed to) or the governing contract particularly closely. In the Braun case, for example, Mr. Das, the neutral arbitrator, had almost unlimited discretion to decide that any seemingly minor procedural discrepancies in the sample handling process were of sufficient significance to decide in Braun’s favor, knowing he had almost no chance of being overruled. If he was influenced in coming to that conclusion by his perception of Braun’s performance or character or value to the sport—or even his desire to keep his job as arbitrator—so be it.

• Depending on your viewpoint, this broad discretion granted to the arbitrators and the non-reviewability of their decisions may be a reason to support the use of arbitration or a reason to reject it, inside or outside the baseball context. In the Braun case, it can save MLB from having to decide whether to pursue the matter further (since the result of doing so wouldn’t be in much doubt) without compromising its position on the arbitration outcome, and for Braun, it gets him back on the field without worrying about getting suspended later—so it’s probably a good thing for everyone. But that may not always be the case.

So what does the Braun decision signify? Maybe not nothing, but surely not much. Braun may have avoided his suspension through a “technicality,” but that’s the way rules and arbitration work. MLB and the Players Association can take steps to be sure it doesn’t happen again.  MLB isn’t stuck with one of its stars sitting out the first 50 games of 2012. And MLB’s drug program, although no more perfect than any other human institution, stands tall. How bad is all that?

— Your “It’s obvious I’ve never taken a performance enhancing substance” mediator

1 The Arbitration Panel consists of one MLB representative, one Players Association representative and a neutral, in this case Mr. Shyam Das. Since the MLB representative dissented from the result, the Panel’s decision was made, effectively, by Mr. Das.

2 With apologies to Mr. Shakespeare. We’re not ready—yet–to say it’s a tale told by an idiot.

3 After this sentence was written, news appeared that the source of the leak has been identified. The Players Association for some reason plans no action against this source.

4 Mr. Pierce’s suggestion that players should be able to ingest whatever they want is not of interest to the owners, Congress and probably most fans. I would hazard a guess that most players would agree as long as they can be reasonably sure that the competition for their jobs is not affected by others’ use of drugs.