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Legal Look: Braun suspension and what it means

Eric Macramalla, TSN Legal Analyst

7/23/2013 9:43:37 AM

Major League Baseball has suspended Milwaukee Brewers outfielder and 2011 league MVP Ryan Braun without pay for the remainder of the 2013 season for PED use. That means he's out for the final 65 games of the season. As a result of the suspension, Braun will forfeit $3.25 million.

This is what Braun and his lawyers came up with as far as a prepared statement:

"As I have acknowledged in the past, I am not perfect. I realize now that I have made some mistakes. I am willing to accept the consequences of those actions. This situation has taken a toll on me and my entire family, and it ... has been a distraction to my teammates and the Brewers organization. I am very grateful for the support I have received from players, ownership and the fans in Milwaukee and around the country. Finally, I wish to apologize to anyone I may have disappointed - all of the baseball fans especially those in Milwaukee, the great Brewers organization, and my teammates. I am glad to have this matter behind me once and for all, and I cannot wait to get back to the game I love."

Why didn't Braun say he did PEDs?

While Braun agreed to the suspension, he does not expressly admit in his statement that he used PEDs; he just says mistakes were made. Presumably, that was done to avoid incriminating himself (any further). His lawyers want to insulate Braun from potential criminal or civil liability. While that may never come into play, his lawyers want to be extra careful with what Braun says and admits.

Why a 65-game suspension?

MLB suspended Braun under its Drug Policy called the Joint Drug Prevention and Treatment Program. The Drug Policy provides for a suspension of 50 games for the first violation, 100 games for the second and banishment for the third. The Drug Policy also provides that absent a positive drug test, MLB can rely on other evidence to show that a player has used or possessed PEDs. That's called a non-analytical positive. That's what happened here.

The Drug Policy also provides that a player may be suspended if he has facilitated the sale or distribution of PEDs. For baseball, facilitation could include lying about a connection to Biogenesis, since that would interfere with the investigation into the anti-aging clinic.

Back to the 65 games. The length of the suspension suggests that a deal was reached. While it's tough to know for sure without being a performance enhanced fly on the wall during negotiations, the sides may have agreed to dispose of the matter, including a guarantee of no appeal, in exchange for meeting somewhere in the middle – or close to it.

I thought baseball said it might suspend players for 100 games. So does the 65 game suspension suggest that MLB didn't think it had a great case?

No - quite the opposite. In order to agree to a suspension without a positive drug test, while also forfeiting the right of appeal, Braun's lawyers must have concluded that the evidence against their client was substantial and overwhelming. If it wasn't, Braun's lawyers would have vigorously contested the matter. Indeed, the circumstances as a whole suggest MLB's case was strong.

Didn't Braun test positive for PEDs back in 2011?

Yes. Braun tested positive for an elevated testosterone level in 2011 (20 times the normal level), but that suspension was overturned by the arbitrator Shyam Das on a chain of custody issue involving Braun's sample. You might remember that Braun adamantly and dogmatically declared his innocence. In part, he said this about clearing his name: "I can't wait to get that opportunity. This is all B.S. I am completely innocent."

Tell me more about the appeal.

The Drug Policy provides that a sample is to be taken by a "collector", and further, the collector must, absent unusual circumstances, FedEx the sample out that "same day".

In the case of Braun, the collector Dino Laurenzi, Sr. didn't FedEx the sample out that same day and Braun's lawyers successfully attacked the suspension on that basis.

Baseball was incensed with Das' ruling – and they had good reason. The same Drug Policy also provides that if a collector can't get a sample out the same day, he or she can store it in a "cool and secure" location. That's precisely what the collector did; still Das found for Braun and reversed the suspension.

Didn't Braun say something mean about the collector?

He wasn't terribly polite. He said this: "There are a lot of things we've heard about the collection process, the collector, and some other people involved in the process that have certainly been concerning to us."

Braun was suggesting that Mr. Laurenzi had somehow acted unprofessionally or unethically, and ultimately – and at the very least – had not properly discharged his duties.

Is that a problem from a legal standpoint?

Defamation possibly comes into play. Defamation refers to saying something untrue that lowers a person in the esteem and minds of the public. Assuming that Braun was indeed dirty in 2011, Mr. Laurenzi could take the position that Braun defamed him. I don't think we will see Mr. Laurenzi file a lawsuit. Nevertheless, there is a reasonable basis upon which to consider the merits of such a claim.

That last sentence was very lawyerly of you.

Sorry. I'll try and avoid that.

Does the 65 game suspension cover the 2011 positive drug test?

Tough to know at this point. MLB did say it commends "Ryan Braun for taking responsibility for his past actions". So maybe the reference to past actions includes 2011. According to the T.J. Quinn from ESPN's Outside The Lines, the "evidence showed Braun used [a] sophisticated doping regimen for [an] extended period" of time. That may also suggest it did include 2011. Still, though, for now it's not clear.

Could the Brewers terminate Braun's contract?

It would be tough. Very tough.

Braun is owed $122 million through 2020, with a $15 million mutual option for 2021. Punishments for PED use are governed by the collectively bargained Drug Policy. So when a player tests positive, punishments are handled by the Drug Policy. That's why the Drug Policy is there in the first place. Courts don't like it when a business has a specific policy in place dealing with a specific offence, and that business elects to ignore that specific policy and does its own thing.

That is not, however, the complete answer. The player contract at Paragraph 7(b)(1) allows a team to terminate a contract if a player "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules." As well, Paragraph 7(b)(3), allows for termination if a player "fails, refuses or neglect to render his services hereunder or in any manner materially breach this contract."

This is broad language and arguably may allow a team, for example, to allege that the use of PEDs had an adverse impact on a player's health after he signed his deal, and on that basis he failed to discharge his obligations under his contract to keep himself in "first-class physical condition". That is hard to show. For example, unless a team can show a direct link between PED use and a player's injury, they will fail in their bid to terminate or fire a player.

A team could also argue that a player misrepresented himself before he signed a big deal, and on that basis they should be allowed to terminate the contract since they were not getting the player they thought they were getting. Again, though, the Drug Policy contemplates for drug use and how it should be handled. So that's your go-to document when a player tests positive.

Fine....be that way. Could the Yankees terminate A-Rod's contract?

That would also be tough but may be worth considering. Rodriguez is 38-years-old as of July 27 and the Yankees owe him $86 million over the next 4 years (not including this season). The Yankees may believe they have better cheaper options available to them. Presumably, they would love nothing more than to rid themselves of his contract. In order to do so, they would have the very difficult task of showing that his injuries are the result of PED use. Again this is very tough to do and would likely not meet with success. However, the Yankees could look to void A-Rod's contract with the real end game being a buyout on favourable terms.

Why do lawyers charge for opening mail?

Envelopes are heavy.

Does Braun's suspension mean that all other players are also guilty?

No. Braun accepting a suspension is not some type of admission that everyone else is guilty. Each case will be examined on its merits and different players may react differently. For example, another player faced with the same evidence as Braun may elect to contest the matter. That player could attack Anthony Bosch, the founder of Biogenesis and a key source of evidence. As someone who may have engaged in criminal activity, he lacks credibility and may have assisted the league with a view to insulating himself from liability. Indeed, Bosch is flawed. There may be upwards of 20 players suspended and to conclude that all players will go quietly is premature. This may just be the tip of the PED iceberg.

Eric Macramalla is TSN's Legal Analyst and can be heard each week on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.