Friday, January 20, 2012

A Legal Look at Ryan Braun's Appeal of Positive Drug Test

By Graydon Ebert

Ryan Braun’s appeal of his positive drug test began in front of an arbitration panel on Thursday. Braun’s positive test, which indicated that Braun had elevated levels of testosterone suggesting the presence of synthetic testosterone in his system, was first reported last month. 

Since it became public Braun has vigorously protested his innocence.

The process for appealing a positive test for performance enhancing drugs is found in the collective bargaining agreement and the Joint Drug Prevention and Treatment Program Agreement, which is incorporated by reference into the CBA. Section 9 of the Joint Drug Prevention and Treatment Program Agreement covers appeals of a positive test result. 

In Braun’s case his appeal falls under Section 9B as he is challenging the positive result. Under this section Major League Baseball has the initial burden of proving that the test result was in fact positive and obtained pursuant to a valid test as set out in the Agreement. Braun, if he wishes that the test result be overturned, then must prove that the test result was not due to his fault or negligence. It is not enough for him to deny that he intentionally took a prohibited substance, but he must prove objective evidence in support of his denial, such as evidence questioning the accuracy or reliability of the positive test. This is a difficult burden for Braun to meet.

The rules of procedure for the grievance of a positive test result under the Agreement are found in Article XI of the CBA and in Appendix to the document. The hearing is held in front of a panel of three arbitrators, one from MLB, one from the union, and one independent member, reportedly Shyam Das in this case. Both Braun and MLB may provide any evidence they deem necessary to the determination of the appeal. Both sides are allowed to examine and cross-examine witnesses under oath. The Arbitrator is allowed to impose another other procedures he deems necessary.

Braun faces the penalty of a 50 game suspension for a first time positive test result. The arbitrator has 25 days from the beginning of the arbitration to make a ruling with a written opinion to follow no later than 30 days after the ruling. If Braun’s suspension is upheld he shall begin serving it as soon as the season starts. If the arbitrator rules that no discipline is appropriate, then all aspects of the proceeding will remain confidential.

So does Braun stand a chance of having his suspension overturned? He is certainly facing an upheld battle. No suspension stemming from a positive test result has ever been overturned in the history of MLB’s drug testing program. Braun has the burden of introducing compelling, objective evidence that the positive test result is not because of his fault or negligence. 

Unless there were serious flaws to the testing process that have not as of yet been reported, it seems unlikely that Braun’s appeal will be met with success.

If the suspension is not overturned, Braun will not be eligible to return to the Brewers until the end of May and will lose $1.87 million of his $6 million salary for 2012.

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