What Ryan Braun’s Appeal Means to MLB’s Drug Testing Policy

From all accounts, Ryan Braun is a man of character.  Since reports surfaced in December that a urine sample obtained from Braun in October 2011 tested positive for elevated levels of testosterone, not a single member of the baseball community has challenged Braun’s character.  At the same time, Braun repeatedly claimed that he would be exonerated, and that he has never used performance enhancing drugs during his career.

The testaments to Braun’s character by his baseball colleagues surely boosted the player’s reputation during what could be described only as a public relations nightmare.  However, it is to be seen how the story of Braun’s positive test will affect his status in the history books.  Unfortunately for Braun, if MLB’s Joint Drug Prevention and Treatment Program were correctly applied to his situation, there would be no question as to how the story of his positive test would affect his status in MLB history.  That is because, if the policies outlined in the Joint Drug Prevention and Treatment Program were adhered to, none of us would have heard the story behind Braun’s positive test.

In the wake of a congressional investigation into the use of performance enhancing drugs by MLB players, and reports that many of the day’s biggest stars tested positive for performance enhancing drugs, MLB enacted the Joint Drug Prevention and Treatment Program.  In relevant part, the program lists which substances are banned by MLB, sets forth a testing procedure and outlines punitive measures for those testing positive for substances banned by MLB.

Arguably, however, the most relevant portion of the program’s policies for players is the section related to confidentiality.  The program’s policies state, “The confidentiality of the Players’ participation in the Program is essential to the Program’s success.”  The program then goes on to specify the confidentiality requirements of the program, which greatly limits the number of people who can be made aware of a player’s positive test.  Long story short, the program prohibits either side from alerting the media of a player’s positive test.  Such prohibition would seemingly prevent the media from disseminating information related to a player’s positive test.

By now, anyone who follows baseball is likely aware that the overturn of Braun’s 50-game suspension came as the result of his camp proving that the chain of command policy set forth within the program’s policies was not adhered to.  Some in the media have asserted that Braun was exonerated as the result of a technicality, since the specimen collector didn’t FedEx his urine sample on the same day it was collected, as required under the program, but rather, held onto it over the weekend. 

While players say that due process was upheld with this result and MLB is crying foul over the perceived technicality of the situation, what both parties should be distraught over, is the clear breach of the program’s confidentiality provision.

First and foremost, players should be greatly concerned that confidentiality was breached in Braun’s case, because of the possible negative effects the breach may have on Braun’s career.  In recent years, baseball fans have seen stars’ successes on the field be stigmatized in the wake of allegations of performance enhancing drug use.  Braun was arguably in the midst of his best season—a season in which he was named the National League’s MVP—when this all shook out.  Although his suspension has been waived, it is to be seen what lingering effects of the news that he tested positive for a banned substance remain.

MLB should be outraged that confidentiality was breached in Braun’s case, because as the policy states itself, “The confidentiality of the Players’ participation in the Program is essential to the Program’s success.”  In order for MLB to reassert itself as “America’s National Pastime,” it must continue to take a strong approach to combating drug use amongst its biggest names.  The publicity of Braun’s case arguably called into question the effectiveness of MLB’s drug testing policy.  The fact that the testing specimen of one of baseball’s biggest stars was mishandled may lead some to question whether other specimens have been similarly mishandled and potentially tainted.  In order for a program to be successful, such questions cannot exist.

Although the proper handling of testing specimens and chain of command issues are items MLB and the MLBPA must address in the wake of Braun’s appeal, the biggest issue both parties must concern themselves with is redrafting the policy so that punitive measures are put in place when a party breaches the confidentiality provision.  The program’s policy provides that, “Within 30 days of the conclusion of the World Series, the Parties will meet with the IPA, the Medical Testing Officer, and a representative from CDT regarding potential changes to the Program based on developments during the most recent year.”  Arguably, the breach of confidentiality in Braun’s case was a relevant development related to the program’s policy which occurred during the past year.  The program’s policy currently does not provide punitive measures for anyone who does not uphold the confidentiality provision.  Thus, to prevent the spectacle surrounding Braun’s situation, both sides would be well suited to begin drafting a punitive clause related to not upholding the confidentiality provision.

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