Major League Baseball and the nature of reality

Ryan Braun, the Milwaukee Brewers slugger and reigning National League MVP, will not be suspended for violating Major League Baseball's policy on banned substances. Normally, the lack of a suspension would not be news because allegations of a failed drug test are supposed to be confidential until the penalty is imposed. So, in the normal case, either a suspension is announced or nobody ever knows anything happened. In this case, though, the allegation that Braun failed a drug test was leaked to ESPN while the process was pending. Under those circumstances, Braun and his circle were perfectly happy to publicize the fact that he had been #exonerated.

But had he? It is undisputed that Braun's case went to arbitration and that the panel ruled 2-1 in his favor. So he will not be suspended. That said, initial reports about the reasoning for the victory cited a technicality in the chain of custody. Apparently the person who took the test did not follow protocol: instead of immediately Fed Exing the urine sample to be tested, he stored it in his refrigerator for two nights because he thought the shipping facility was closed.

Based on these reports, some are claiming that Ryan Braun has not exactly been found innocent of using performance enhancing drugs. For example, Tyler Kepner has this to say in the New York Times:

He won on a technicality; there’s no other way to say it. Storing a sealed drug test in a refrigerator for the weekend cannot change the properties of the sample. Braun might have a perfectly reasonable explanation. He seems too smart to have knowingly used a banned substance, but he bears the burden of his predecessors, who stood against steroid testing to protect the cheaters among them. Players were sneaky, management was oblivious, reporters were not vigilant and fans were duped. Suspicion reigns, understandably.

As Kepner acknowledges, it is apparently undisputed that Braun did not use a steroid, although it's unknown what supposedly triggered the extremely high levels of testosterone in the urine. (There are rumors, though.)  But under MLB's policy, it doesn't matter whether or not a player knowingly takes a banned substance, or unknowingly takes a substance that mimics the profile of a banned substance during the testing. It's strict liability: if MLB establishes a valid positive test, the player must then prove that the result "was not due to his fault or negligence." In other words, an accidental positive is still a positive.

That's one of the reasons why the gnashing of teeth about Braun winning on a technicality strikes me as ridiculous: innocence was not a defense!

There are other reasons. The MLB policy sets out very clearly what the Commissioner's Office has to prove in order to impose a suspension.

In any case involving an alleged violation of Section 3.E.1, the Commissioner's Office shall carry its initial burden of establishing the violation by establishing that a Player's test result was "positive" (as that term is defined therein) and was obtained pursuant to a valid test conducted under the Program.

(See Section 9(b) of the policy.)

So MLB has to establish two things: (1) a "positive" test; and (2) a "valid test conducted under the Program." To establish a "positive" test, MLB doesn't have to prove the presence of a banned substance in a player's body; they only have to establish that "any substance identified in the test results meets the levels set forth in the Testing Protocols." In Braun's case, for example, they didn't find a PED, they found a natural hormone—testosterone—but too much of it.

Let's take for granted that Braun gave a "positive" test result. The other thing MLB has to establish is that the result was "obtained pursuant to a valid test." What does that entail? A lot. Addendum A to the MLB policy sets out the testing process in detail. It is 13 single-spaced pages, with an additional eight exhibits.

One of the sections in this document is entitled, "Procedures After Collection." It is two pages long, and provides in relevant part that:

F. When all of the specimens have been collected at the collection site, the Collector shall take the specimens in the appropriate packaging to a FedEx Customer Service Center for shipment. The specimens cannot be placed in a FedEx Drop Box location.

This is apparently where the breakdown occurred.  The Collector did not take the specimens to a FedEx Customer Service Center. He took them home. For two days.

This has been called a "technicality." In law, we call technicalities "rules." And I call enforcing the rules "justice."

But let's call it a technicality. Is there any reason to believe that this breach of protocol, assuming it was one, calls into to question the veracity of the eventual test result? Of course there is. Urine samples on the lam for two days should be considered just as probative of intentional tampering as unnaturally high testosterone levels are for PED use.