BY GRAYDON EBERT
As we all know by now, Ryan Braun’s suspension for violating the MLB drug policy has been overturned with independent arbitrator Shyam Das casting the deciding vote. Without the benefit of written reasons we cannot definitively say their exact reasons for this decision, but it has been widely reported that the issue was a break in the chain of custody of the sample and a failure to follow proper protocol under the drug policy. So where does this decision leave us?
We are no closer to knowing the truth about whether Braun used performance enhancing substances to artificially raise his testosterone level. We will probably never know the truth and that no doubt hurts the integrity of the game. Other than Braun, nobody is happy about this outcome. MLB has publicly stated their disagreement with the decision and cannot be pleased that the quality of their testing program has been sullied. MLB players and the MLBPA have to be very anxious about what happened to Braun. If Braun’s reputation could be attacked as a result of an improper handling of a sample contrary to the drug policy, then it could happen to any player. Much of the public and the media are upset at what they feel is another baseball player getting away with cheating the game. They feel Braun exploited a loophole in the system and got off on a technicality. Is this true? Did Braun game the system?
Some people feel that Braun only escaped punishment because he exploited a technicality in the system; that he was guilty of cheating but because the sample may not have been handled properly he won’t be punished. Is this fair? Is a flaw in the chain of custody really a technicality? Before we get to that, let’s consider a couple hypothetical situations.
Imagine you are the prime suspect in a murder. You are certain in your belief that you are 100% innocent. However, the police have tied you to the crime because you had a motive, no alibi and they found a hair on the murder weapon that seems to match your DNA, after the police take a sample of your DNA. Everything points to your guilt, but it comes out that there might have been an issue with how your DNA sample was handled and that proper protocols were not followed. Doubt has been cast on the results of the DNA match. How comfortable would you feel about being sent to prison for life on the basis of a DNA match clouded in doubt?
Now Braun isn’t about to go to prison for life, so let us lower the stakes. Imagine you work at a company where mandatory drug testing has been collectively bargained for, and a failed test can result in a significant suspension without pay. Now you know you’ve never taken any drugs; you are the most straight-laced person in the world, but your test comes back positive for cocaine. As a result, you’ll be suspended without pay for six months, crippling you financially. When you return to work, your reputation will be destroyed, your colleagues won’t take you seriously, and your ability to do your work will be negatively impacted. However, it becomes known that the company did not follow the proper procedures in the testing policy, raising doubt as to whether your sample showed cocaine in your system at all. Would you still feel comfortable accepting the suspension?
The MLBPA and the MLB collectively bargained the existence of the drug testing policy. It is the product of negotiation and compromise. Whether or not we like aspects of the technical protocol of the policy, or we think they are necessary, those are the agreed upon procedures for the testing program. When the players gave up their privacy rights and subjected themselves to punishment for use of performance enhancing drugs, they accepted the fact that if they used drugs, they would be caught and punished. The flip side is that they have a very reasonable expectation that the technical protocols of the policy will be followed to ensure that only those truly guilty would be punished. Where these protocols were not followed, the guilt of the player would be clouded with doubt. If the players cannot trust the testing program, its efficacy is threatened. The players will no longer accept the threat of punishment from a system that punishes innocent players.
In a criminal case, the Crown must prove the defendant’s guilt beyond a reasonable doubt. We have a history of not punishing those for whom we view their guilt with some doubt. There is a famous saying by English jurist William Blackstone that it is “better that ten guilty persons escape than one innocent suffer”. We would rather let ten guilty people walk away from their crimes without punishment than to punish one innocent person for a crime they did not commit. What is not clear, and may never be clear, is whether Braun is one of the ten guilty, or if he is the innocent one.