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February 24, 2012

Wezen-Ball Extra

Major League Baseball's Lack of Confidentiality: UPDATED

by Larry Granillo

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."

Gordon Edes of the Boston Globe also wrote:

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."
Related Content:  Ryan Braun

31 comments have been left for this article. (Click to hide comments)

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Jack Thomas

Great article! MLB should be upset about the violation of the confidential process -- not the reversal. Of course the leak could have come from many sources: MBL, MLBPA, the lab, etc. It would be a major black eye for MBL if it was from within MLB.

Feb 24, 2012 05:25 AM
rating: 2
Mike W

This episode has made one thing very clear. Like most bureaucracies, the first priority of the office of MLB is . . . the office of MLB. They have never shown any concern about the history of leaks from their office, which for all we know played a part in Das's decision here (not that he could have said anything to this effect). Now that MLB has lost this decision, rather than moving on and wishing Braun well, etc., for the sake of the game, they have doubled down and are threatening to go to court with their "outrage." What a magnificent tin ear, just what we've come to expect from the reign of Bud.

Feb 24, 2012 06:54 AM
rating: 9

Great article, Larry. MLB really blew this one, and they're going to unfortunately pay for it. Of course, as fans we will pay as well when the next CBA time comes around, because this episode will not be forgotten.

Feb 24, 2012 07:13 AM
rating: 0
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Braun got lucky on a technicality. I don't blame MLB for being upset

Feb 24, 2012 07:32 AM
rating: -13

But leaking details to the press by MLB might ultimately have the exact opposite effect of what they're trying to achieve here. They've handed the MLBPA a nice little pile of chips to bring to the bargaining table the next time the CBA or drug policies are discussed.

Feb 24, 2012 08:16 AM
rating: 2

Technicalities are there for a reason. Quite aside from the leaks, MLB doesn't seem to understand that this is a serious business and they shouldn't run it like a bunch of clueless amateurs. When there are protocols to follow, follow them. Not knowing when FedEx closes is not acceptable when it is your job to follow a contract like this.

MLB has been in breach of contract over and over again when it comes to drug testing. No arbitrator should give them any leeway until they can demonstrate that they have some idea what they are doing. If they can't get the job done, then the next CBA needs to hire a third party who can administer a drug testing protocol according to signed agreements.

Feb 24, 2012 15:31 PM
rating: 10
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I agree that Braun got off on the technicality. And there is a problem with the league.

But the thing that gets fans upset is the fact that Braun is guilty of this baseball sin, and he got away with it. These leaks are the sort of thing which lead to justice being done in the future in the game, and although it sort of stinks for Braun (his own fault really), the fans and the game need to keep an accounting of people who break its rules.

The outrage fans will feel towards Braun will be because he cheated (perhaps unknowingly) and they wont really care about the confidentiality issue.

Feb 24, 2012 07:59 AM
rating: -12

Smocon, welcome to the Memory Hole. You expressed an opinion with no slurs or hate, yet here you are having dared to speak truth to power, as we hear at other times.

While i can understand why MLBPA wants confidentiality, it is not really bad for the game that the process actually be transparent as possible

Feb 24, 2012 17:53 PM
rating: -3

How is transparency good for the game? This whole Braun situation has been transparent and most of the rhetoric surrounding the resolution has been overwhelmingly negative. This negativity has been focused on all the parties involved (Braun, MLB, MLBPA, Shyam Das, the specimen collector). Had the leak never occurred, the initial suspension and the appeal, successful or not, would have happened behind the scenes, and the general public would have been none the wiser. This isn't to say that he would have won the appeal and "gotten away with it" in private. That's not the point.

Confidentiality in the process prevents undue attention on an initial conclusion. The player is still given his right to appeal. However, it is done without the masses rushing to judgement based on one side of the issue. MLB's side concluded he had tested positive through the proper application of the collectively-bargained drug testing procedure. Braun's side then had to be heard in both the arbitration court and the public opinion court. Unfortunately, the public opinion court didn't care to hear or understand Braun's side. Braun and the MLBPA argued his side (that the applicaiton of the procedure was not done in accordance with the agreed upon rules), and the arbiration panel ruled in his favor after hearing both sides. The collectively-bargained drug testing procedure had worked.

Under normal circumstances, when a suspension is announced, it is rare for the player to fight the suspension. Appeals are not allowed, as the appeals process plays out behind closed doors prior to the announcement. Players usually come out with strongly worded statements proclaiming their innocence or explaining the positive result. A grievance may be filed here and there. However, they all serve their time and baseball moves on. This all happens because there is no transparency in the drug testing process. This is good for the game because everyone can move on quickly knowing that the suspension has been vetted through the confidential appeals process. There's no need for the public opinion court to take sides. The game is better for that.

Feb 24, 2012 21:29 PM
rating: 4

I agree with the arbitrator's decision in this case. That said, I don't agree with your supposition that "If everything had proceeded as it was supposed to, the public would be none the wiser."

If everything had proceeded as it was supposed to, Braun might very well be serving a 50 game suspension, because, you know, he might have actually been using Performance Enhancing Drugs.

It is 100% true that the courier blew it, and Braun's attorneys made the right argument. But that doesn't mean that Braun didn't actually have a dirty sample. Because a courier didn't do his job, we'll just never know. The arbitrator's decision is the right one, as we absolutely have to adhere to a system that is designed to protect us.

I don't think you can blame the general public, though, for making the cynical assumption that Braun was probably guilty. Off the top of my head, I can't think of a single case where a dirty test result turned out to be proven wrong. And this one was not proven wrong, it proven to be inconclusive due to its integrity having been compromised.

Feb 24, 2012 08:29 AM
rating: -1
BP staff member Larry Granillo
BP staff

"If everything had proceeded as it was supposed to with regards to confidentiality". Sorry.

The problem I have with the "the courier just blew it - he still had a failed test" thinking is that it assumes that the rest of the process was infallible/handled properly. This entire testing procedure is important. If mistakes can so clearly be made in one important aspect, how can we trust that mistakes weren't made in any other parts of it? As someone said elsewhere, these guys have proven to be bumbling idiots, so why do we believe the bumbling idiots did everything else right?

Chain of custody is an important principle that can't just be ignored. As you said, it compromises the integrity of everything - as in the whole procedure.

Feb 24, 2012 11:05 AM

So you just stop your ears, close your eyes. MLB and the lab claim everythinng else was right. RB said nothing else was wrong. No proof or even theory how that protocol deviation hurt the test result. I am in health care and i can tell you protocol deviations are relatively infrequent, but there are lots of redundancies built in so when a question arises, 98% of time we can still have 100% confidence specimen is ok, or do you want us to repeat your colonscopy?

Feb 24, 2012 18:05 PM
rating: -2
BP staff member Geoff Young
BP staff

Depends. If we can have 100% confidence in the specimen 98% of the time, what are the consequences for the other 2%? Illness? Death? Loss of reputation?

Feb 25, 2012 05:51 AM

Wow, my comment is still up.

Rest assured, if we do not have complete confidence in the specimen ID, it is not tested. There is no point and there is lots of liability. The potential outcome really doesnt matter.
But there are often times little problems, in some ways similar to RB, that we encounter, crunch all the facts, and test anyway. Never have had a problem.

Feb 25, 2012 07:23 AM
rating: -3

Braun didn't say nothing else was wrong. He chose not to challenge any other part of the procedure because his lawyers thought the chain of custody issue was strong enough to get the suspension overturned. And they were right.

Feb 25, 2012 08:05 AM
rating: 7

The reason "chain of custody" is significant is that without its integrity, the specimen is worthless and should never have been tested but destroyed and another specimen obtained and properly handled. Everyone who says none of this matters and he is "obviously guilty" should reconsider their opinions. MLB's outrage is akin to that of prosecutors whose conviction has been overturned by irrefutable scientific evidence saying "I still am sure he did it." Confidentiality is a myth. Everything is leaked by someone with an agenda, whether it is a drug test or grand jury testimony.
Thank you for caring.

Feb 24, 2012 09:01 AM
rating: 12
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"a good-faith effort on the players' part to show their openness to battling the steroid problem" ARFARFARFARFARFARF!!!! Really, you BP guys slay me sometimes!

Feb 24, 2012 11:05 AM
rating: -14

Oh, and for what it's worth (basically nada), it was not a 'chain of custody' issue, but an 'improper handling' one. We know where the sample was at all times, and under what conditions.

Feb 24, 2012 11:07 AM
rating: 1

Quickly, how do we know what conditions the sample was kept under? I suppose we might know what conditions the courier says he kept the sample under, but that's not really the same, is it?

Feb 24, 2012 15:57 PM
rating: 1

and how do we know anything about anything good grief. The lab may have also screwed up, all their test results fudged. One thing is wrong, ergo nothing is right.

This mindset, refusing to use all information, instead relying on amplification and then distortion of one fact to the exclusion of all others, will work for RB, but it does not work for MLB or the clean players, both current and future MLBers. Unless of course, PED use is ok. I hope this screw up is an aberration and we will not see each + test overturned.

Feb 24, 2012 18:10 PM
rating: -2

There is no evidence that he used PEDs. His sample had an extraordinarily high ratio of testosterone to epitestosterone, apparently caused by a synthetic testosterone. This result was not repeatable to any degree a month later, nor was there any previous evidence of this in two earlier tests that season. I do not know how unlikely this is, but this is not proof of use of a PED.

Feb 25, 2012 00:24 AM
rating: 10

Funny how we laud leakers when we agree with what they're doing ('whistleblower', I believe the term is), and they're the earth's lowest vermin when we don't like what they tell us ('shooting the messenger').

Feb 24, 2012 11:09 AM
rating: 0

It's more then just whether we agree with the leaker. More important is the question of whether there is any sort of need or value for the public to know the information. In this instance, the value of the public knowing the outcome of Braun's drug test immediately is zero. If it had been positive *and* properly handled, then the public would have known in due course.

Whistleblowing is more important when the process and safeguards are not being followed. If it were the case that positive results were being suppressed by those in charge, then there would be a need to know. That wasn't the case here. The leaking was 100% gratuitous.

Feb 24, 2012 15:38 PM
rating: 12

I would contend that the Palmeiro leak was somewhat gratuitous, as it happened after the suspension was announced. The Braun leak was malicious in that if, for whatever reason MLB had chosen to not suspend him, or if the arbitrator had found the test itself to be dubious, Braun still would have been labeled a cheater who merely got away with it because he was too big to suspend. This leak is far worse than the others.

Feb 25, 2012 00:29 AM
rating: 4

Funny how we laud whistleblowers when they leak information damaging to their personal interests and/or that puts themselves in some jeopardy, and they're the earth's lowest vermin when they leak information under cloak of anonymity to further their own interests.

Fixed that for you, big guy.

Feb 25, 2012 08:08 AM
rating: 8

I can't believe the players were so naive as to believe the confidentiality agreement would be kept. They were bludgeoned into agreeing to the testing regime by MLB, the press, and politicians; and I'm certain they've known from Day One that MLB would leak without hesitation any information that could be used to turn public opinion against the players and extract concessions from them.

Feb 24, 2012 12:18 PM
rating: 2

Great article! Thank you for the insight. At least there's one media outlet covering the questions and angles that arise from this story, aside from the "I still think he did it" angle that ESPN and the mainstream media have taken to reporting on.

Slate had a great story on why a procedural issue is enough to drop this charge. http://slate.me/yMAXSN

Feb 24, 2012 16:19 PM
rating: 1
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Playing politics and bureaucracy with the game of baseball--will people really think MLB and MLBPA are really addressing PEDS. That is the bad part, and yes, the clean players, are cheated also. No one will go public, but i can not imagine clean players being satisfied with this explanation

That he got off is not so bad, I can understand but disagree with the arbiter, but BP writers actually seems to be covering for RB. Trying to preserve the access that took years to establish? Did Joe Sheehan really tweet that "COC is the new 'i thought it was flaxseed". Tom Verducci is wrong, Jeff Passan is wrong, even Ken R knows offered little defense of RB. There has got to be one PhD in the 4 months that RB could have hired to stand up there with him at the mic and explained all this. he was there by himself.

Feb 24, 2012 18:01 PM
rating: -5

Braun's lawyers knew about the results, are not part of the Commissioner's Office, the MLBPA and are definitely not associated with the "Program". Braun's family as well.

In fact, if you play the semantics game, the family of any of MLB, MLBPA and those associated with the Program would qualify.

That said, it would not surprise me to find out it was Braun's lawyers - with his permission - as an attempt to get out in front and spin the positive test result.

Feb 25, 2012 05:56 AM
rating: 0

When Braun found out about all of this, he denied wrongdoing and requested another test, which came back clean. For my part, I think that answers the question of whether chain of custody is significant. I'd like to know how all of the people assuming Braun is juicing are rationalizing the existence of his clean test.

Feb 26, 2012 19:02 PM
rating: 1

Victor Conte said recently:

"...what they're doing is using fast-acting testosterone - creams, gels, orals, patches - and they clear so quickly, sometimes in a matter of hours. … They could conceivably, after a game, use testosterone to help with tissue repair and healing and recovery and by the time they'd show up at the park the next day, their PE (progesterone/estradiol) ratio would be normal."

It is 100% possible that Braun could have submitted another sample that was legitimately clean without proving anything about the original test.

That's how I'm "rationalizing" his clean test.

Feb 27, 2012 10:07 AM
rating: 0
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