February 24, 2012
Major League Baseball's Lack of Confidentiality: UPDATED
When the Major League Baseball Players' Association agreed in 2003 to a "survey" round of drug testing in order to gage how widespread the use of steroids and other performance enhancing drugs was, they did so with the assurances that the tests and the results would remain confidential. It was a good-faith effort on the players' part to show their openness to battling the steroid problem everyone (namely Congress) felt was ruining baseball.
The samples provided by the players were to remain coded, with a key to that code kept separate and away from the specimens (one in Long Beach and one in Las Vegas). Eventually, the two pieces were to be destroyed. Before that could be done, however, the specimens and the list were subpoenaed and seized by the U.S. Attorney's office. Players were upset. Not only had their confidence been betrayed, but the evidence hadn't been destroyed in the agreed-upon time frame, and now the players themselves could potentially be subpoenaed and compelled to speak to prosecutors.
In 2005, two weeks after getting his 3,000th career hit, Rafael Palmeiro was suspended by Major League Baseball for failing a drug test. As per the joint drug policy, the substance Palmeiro was found to have taken was not released. Within two days, however, the New York Times reported that the failed test was for the drug Stanozolol. The Times cited "a person in baseball with direct knowledge of the sport's drug-testing program" but said that he or she "did not want to be identified because the testing policy prohibits anyone in baseball from disclosing information about test results without authorization." It was also leaked that the failed drug test had taken place in May, three months before the suspension was handed down, and well before Palmeiro had crossed the heralded 3,000-hit mark.
Palmeiro and the Players' Association were upset by the leak. According to the Baltimore Sun, Palmeiro issued a prepared statement following the leaks to the Times: "The confidentiality rules that the arbitrator set in this case have been broken by MLB. Rafael has respected the rules by not discussing the specifics, but unfortunately MLB has not done the same. What MLB has done is outrageous and it undermines the integrity of their drug-testing program."
Gene Orza, the MLBPA's chief operating officer, told one newspaper that the players' association was considering "filing a grievance against MLB, alleging it didn't honor a confidentiality clause in the drug policy." Orza was also quoted as saying, "It's a sign of the times that someone will say, 'I'll tell you what you need to know but you have to keep my name anonymous because I am violating the terms of the basic agreement.'"
Since 2005, the biggest name in baseball to have been suspended for failing a drug test was Manny Ramirez, who began serving a suspension in May 2009. The Ramirez suspension was not precipitated by any leak, though it didn't take long for Mark Fainaru-Wada and T.J. Quinn to learn from "two people with knowledge of the case" the identity of the illegal substance.
Three months before the Ramirez suspension, Sports Illustrated reported that Alex Rodriguez's name was included on the list of failed drug tests from the 2003 survey testing that had been seized by the federal government. After two days of speculation, Rodriguez admitted to Peter Gammons that the reports were true and that he had used steroids for three years after signing his ten-year contract with the Rangers.
Finally, there's Ryan Braun. The story is pretty well known at this point. In early October, at the start of the playoffs, Braun failed a drug test. In December, before he was able to exercise his contractually-protected right to appeal that failed test, someone leaked the results of his test to Fainaru-Wada and Quinn. Six weeks later, the appeal was heard. Five weeks after that, it was announced Thursday that Braun won his appeal. Reports say that the Braun camp was able to prove that a proper chain of custody had not been maintained, specifically, that the urine sample Braun provided was kept at the handler's home for two days because he thought it was too late to get it shipped by the local FedEx office. Braun, for all legal purposes, is as clear and free as if he had never failed the test to begin with.
If everything had proceeded as it was supposed to, the public would be none the wiser. Braun would be entering the Brewers spring training Friday with no stains, arriving as any reigning MVP might. Instead, the baseball world is alight with how Braun "got off" on a "loophole" and through a lawyer-friendly "technicality." To many baseball fans, Braun cheated the system and is as guilty as if he were serving that suspension today.
Since drug testing began in 2003, Major League Baseball has had major problems maintaining the confidentiality with which they and their independent program administrator are entrusted in the drug testing process. Players names have been leaked from lists that were not even supposed to exist, confidential details of tests have been given out almost immediately after the tests were made public and, now, a player's reputation has been irrevocably damaged thanks to the leak of a test that Major League Baseball could not even make hold up to scrutiny. Sadly, this wasn't unforeseen.
In 2004, Murray Chass reported: "Confidentiality is the key to the players' acceptance of any program, and they feel that the government's action violated the promise of confidentiality, as well as anonymity, under which the [survey] tests were to be conducted. … But one thing they agree on is that whatever testing is done, confidentiality must be guaranteed. Even those players who favor stiffer testing say confidentiality is of paramount importance."
Sox pitcher Curt Schilling had raised concerns last week about the testing program, expressing distrust in MLB's administering of the program and fears regarding the possibility of inaccurate tests, as well as privacy issues. …Without confidentiality safeguards, the source said, MLB understands that the players would resist any testing program.
Or, as Hal Bodley put it:
Baseball's testing program won't—and can't—work without confidentiality. This seems absurd to the casual fan, yet had it not been for that key element of the program there would be no testing for steroids in baseball. Period.
Better yet, how about the language found directly in the Joint Drug Agreement:
The confidentiality of the Players’ participation in the Program is essential to the Program’s success.
The drug testing program used by Major League Baseball today only exists because it promises to maintain all confidentiality of player tests until said player is found guilty (after a thorough appeal process). As Ryan Braun can tell you, that promise does not seem so strong anymore.
UPDATE: Major League Baseball and the Players' Association both released statements today clearing the other of blame for the leak in the Ryan Braun case. Here is part of the MLBPA's statement:
"The breach of confidentiality associated with this matter is unfortunate but, after investigation, we are confident that it was not caused by the Commissioner’s Office, the MLBPA or anyone associated in any way with the Program."
This is rather commendable from both parties, but it's difficult to parse. Only the Commissioner's Office, the MLBPA (of which Braun is obviously a part) and those "associated with the Program" knew about the results, so where did the leak come from? As might be expected, the official statement makes things even tougher to understand.
At least we know that Michael Weiner finds the breach of confidentiality "unfortunate."