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JETLaw member Raymond Rufat described the overturning of Ryan Braun’s suspension a few weeks ago on this blog. I’ll begin by quickly summarizing his post. What I will focus on is why MLB will not appeal the arbitration decision and what MLB should do instead.
In December 2011, it became known that Braun failed a drug test, testing positive for a performance enhancing substance. Speculation lit up the internet, ranging from the predictable (he’s just another juicer) to the absurd (herpes medication).
However, in late February Braun became the first MLB player to have a positive drug test invalidated. Braun prevailed on chain of custody issues, as the sample was in the collector’s basement for two days before being delivered by FedEx. It has been reported that it is not possible for the type of synthetic testosterone that was found in the sample to occur naturally, meaning that Braun either used a performance enhancer or someone tampered with the sample. MLB remains livid over the arbitrator’s decision to overturn.
So what can MLB do? It has three options: 1) do nothing; 2) change the drug testing protocol; 3) appeal. In my opinion, the best option for MLB is behind door number 2.
Doing nothing is clearly a poor response. By all accounts, the process used by the collector was proper, under MLB’s interpretation of its rules. Additionally, Braun did not allege that the sample was tampered with, merely that MLB’s collection procedure was not properly followed, under his interpretation of MLB’s rules. Based on the arbitrator’s decision, doing nothing will allow this situation to play out every time that a sample is collected after the local FedEx has stopped delivering for the day.
Thus, MLB should change the rules and get in line with the World Anti Doping Agency (WADA). MLB must first eliminate the requirement that, “[a]bsent unusual circumstances (PDF), the specimens should be sent by FedEx to the Laboratory on the same day they are collected.” Under WADA, samples should be shipped as soon as practicable, and whenever possible on the day of collection. Viewed under the WADA standard, this blog post is never written because Braun never wins his appeal.
MLB believes that “absent unusual circumstances” should be read the same way that WADA’s “as soon as practicable” is read. Shyam Das believes that “absent unusual circumstances” requires the sample to be dropped off at FedEx, even if it will not be shipped that day.
Reading the MLB rule in context, it is clear that MLB’s interpretation is the correct one. “Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected.” Had the collector dropped the sample off at FedEx on the day it was collected, FedEx would not have delivered the sample that day because it had stopped deliveries for the night. Thus, the rule would have been complied with under Das’ interpretation because the sample was dropped off at FedEx the day it was collected. However, the collector still would not have complied with the rule itself, because FedEx would not have delivered the sample on the day it was collected.
In fact, MLB protocol requires collectors to personally hold the sample if FedEx will not deliver it that day. FedEx would not have delivered the sample that fateful night, but it would have accepted the package up until 9:00 p.m. Thus, Braun goes free because Das ignores the second part of the MLB rule that states that the sample should be delivered by FedEx on the day the sample is taken. FedEx was no longer delivering packages for the day on which the sample was taken (all locations within 50 miles of the collection site stopped accepting packages for delivery at 5 p.m). That, in my opinion, constitutes an unusual circumstance that prevents the package from being delivered that day. Essentially, Das has confused “delivered” with “accepting.” There is no requirement that the package be dropped off at FedEx if FedEx will not deliver the package that day.
Because Das’ interpretation of the MLB rules is probably wrong, why not appeal? Well, despite the fact that Das is probably wrong, it is very unlikely that MLB would win. So long as an arbitrator is “arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision.” E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57 (U.S. 2000).
While it would be interesting to see what a court had to say about this, my bet is that MLB merely changes the rule and attempts to move on. The standard for overturning an arbitration award is very high and it appears that Das attempted to construe the contract, even if he did so in a highly unusual way.
- Charles Michels
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