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Saturday, February 25, 2012

A matter of a technicality? Ryan Braun, chain of custody and defamation.

Sorry to all who expect this blog to be a one-trick pony.   This is a post about baseball, science, and the integrity of process.  This is a post about the besmirching of the good name of Ryan Braun and the process failure that has vindicated him...while leaving room for doubters to continue to deride him.   A classic case of "have you quit beating your wife yet?" being played out in the world of Major League Baseball (MLB) and the Players Association (MLBPA) because of a failure to follow protocol in drug testing. 

The following is excerpted from the Online Free Dictionary regarding libel and slander:

"Two torts that involve the communication of false information about a person, a group, or an entity such as a corporation. Libel is any Defamation that can be seen, such as a writing, printing, effigy, movie, or statue. Slander is any defamation that is spoken and heard.

Collectively known as defamation, libel and slander are civil wrongs that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to one's good name or reputation is affected through written or spoken words or visual images. The laws governing these torts are identical.

To recover in a libel or slander suit, the plaintiff must show evidence of four elements: that the defendant conveyed a defamatory message; that the material was published, meaning that it was conveyed to someone other than the plaintiff; that the plaintiff could be identified as the person referred to in the defamatory material; and that the plaintiff suffered some injury to his or her reputation as a result of the communication.

To prove that the material was defamatory, the plaintiff must show that at least one other person who saw or heard it understood it as having defamatory meaning. It is necessary to show not that all who heard or read the statement understood it to be defamatory, but only that one person other than the plaintiff did so. Therefore, even if the defendant contends that the communication was a joke, if one person other than the plaintiff took it seriously, the communication is considered defamatory..."

I am NOT a Brewer's fan (White Sox and Reds) and not a Jew but I am disappointed with the world of journalism.   This concerns the case of Ryan Braun and the allegations of performance-enhancing drugs usage because of the results of a sample taken during last year's playoffs.  

ESPN's Outside The Lines referred to two sources when they released the story of Braun and a failed test back in December of 2011.   Braun had won the National League's Most Valuable Player award for 2011 and led his team to the MLB playoffs.  According to policy, the name of a player accused of violating MLB drug policy is NOT to be released until he is both charged and given a chance to appeal a failed test.  Someone was irresponsible if not criminal in leaking the information to ESPN.  Suspiciously, the ESPN reporters refer to two sources for the information and, as it happens, two collectors were the persons who broke the chain of custody with the urine samples that failed testing...and failed spectacularly at that!

Braun addressed the issues upon having his potential 50-game suspension overturned by a professional arbitrator.

The MLB collectors mishandled the samples, as Braun eloquently pointed out, with several FEDEX facilities open and the collectors supposedly being professional and responsible for knowing that the sample is supposed to be turned over to FEDEX immediately and assigned a number rather than a name.   Instead they broke chain of custody (this would have the evidence thrown out in a court of law 100 per cent of the time) and, suspiciously, Braun's positive result was released to ESPN reporters.   A Yahoo Sports reporter decided to make this statement:

"None of that changed the noon press conference in Maryvale. Accompanied by his agent and two public relations men, Braun walked from the right-field corner to a place in foul ground near the first-base dugout.
He will not sit out the Brewers’ first 50 games. He will play left field, bat third, and lead the defense of their National League Central title, almost like none of this ever happened.

It did, of course, and now we’re left to wonder who Ryan Braun is. Or was.

MLB thinks it knows. The public thinks it knows. Only Braun, however, knows for sure.

He fixed his stare.

“If I had done this intentionally or unintentionally, I would be the first one to step up and say I did it,” he said. “This substance never entered my body at any point. … There were a lot of times I wanted to come out and tell the entire story, to attack everybody as I’ve been attacked and had my name dragged through the mud.”
He concluded, “The truth prevailed.”

His eyes said yes.

Science said no, no, no."

The science cannot say "no no no" if the process was not controlled, so the statement is dramatic but inaccurate.  If a test is not run properly the results are suspect, no matter what field of science is involved.  Therefore, from a legal perspective the chain of custody was broken and from a scientific perspective the sample was not controlled properly.  The conclusion is a a great "gotcha" line but it is completely wrong.  The science was never given a chance to say anything because the possibility of tampering is there.  Given motive and opportunity, miscreants can find a way to tamper with a sample.  The point of the process is to avoid such situations.  The process was NOT followed, there was no excuse for the two day delay in delivering the sample to FEDEX.  The collector's lame explanation flies in the face of common sense.  Are we to believe that MLB would assign such a critical task to a couple of morons?  If your job is to take samples and deliver them, numbered, directly to FEDEX and you choose not to do so properly, then the observer should be asking how and why such incompetence is tolerated?

Why is it that these collectors held on to a sample for so long when it is their job to handle it properly?  How is it that Braun's name got out, anyway?  As an amateur scientist and forensics buff, when I see that a guy has 25 clean tests when the process was followed and a bad result when two guys break chain of custody AND Braun's name is released?  My focus leaves Braun and scrutiny lands squarely on the collectors! 

Is it possible that the collectors had rigged the samples somehow by adding a substance by sleight-of-hand during the time Braun produced the samples?   Is that why the collectors kept the samples in their home rather than sending them off to FEDEX, because they wanted an added substance to thoroughly mingle with the sample before it was tested?  Innumerable questions hang in the air, unanswered.   If Braun has been defamed then the MLB authorites should be trying to find out how the system failed rather than complaining about the decision of the arbitrator, a respected man in that field, who concluded that the evidence was sullied by a system failure.   As there was no question about the samples beforehand and the testing facility had no reason to believe that tampering may have occurred, there were no forensic tests performed to look for signs of tampering before the seals were broken and the testing done.   It is too late to go back in time and thoroughly scrutinize those containers now.  That horse is long gone from the barn.   MLB would be wise to ensure that said barn's door is secured properly in the future.

The fact that Braun's name was dragged through the mud and no one has scrutinized the collectors should bother a responsible reporter.  Braun has no "symptoms" of PED usage at all.  But an unfortunate fact of life is that there are people who are prejudiced against some people based on color or creed.  I would expect a responsible journalist to follow up on the questions instead of taking the easy way out and piling on Ryan Braun.   Yet a host of sports journalists are complaining that Braun was vindicated "on a technicality."   If they were accused of a crime and the evidence against them was mishandled, would they ask the judge and jury to go ahead and use it against them anyway?  I think not!

I would not be surprised if Braun decides to investigate the collectors and perhaps bring suit against them.  As an investigative journalist, I would be interested in researching how Braun's name was released.  If you think like a detective and consider the mishandling of the sample and the release of the name as a crime, then the number one suspects on your evidence board are the two collectors.  Who else would have been able to leak the name?  Who else had possession of the samples for a long period of time with no oversight?  Means, opportunity and motive...the two collectors would certainly have the first two of the three standards for identifying criminal suspects.   Motive remains entirely unclear because the investigation of the leak and leakers is yet to come. 

I do hope a responsible investigative journalist decides to follow up without prejudice and do so with intelligence.  It would be great to read baseball commentary by columnists from a big organization like Yahoo Sports that is more thoughtful than "Ryan Braun’s words say one thing, science another."  To me, it was a hit piece based on presuppositions that are not supportable scientifically or legally.  The science was not allowed to say anything authoritative because of the irresponsible actions of the collectors.   To suggest otherwise seems irresponsible to me.  I made sure to relay my opinion of that article to the author.   If he replies and wants to have his reply made public, I will follow up accordingly.   Just because I have left the field of sports journalism does not mean I do not care about the profession.   (It does mean I do not have an editor, however, for better or worse.   I simply tell it like I think it is.)

One of my hobbies involves the statistical analysis of baseball players and their performance over the course of their careers.   Athletes and their careers can be compared to an iceberg.   The bigger the iceberg, the more ice above the surface.   That is another way to say that statistics indicate a bell curve of production.   Over the course of an athlete's life, only a small portion of his lifetime will be spent playing major league baseball.   The more talented athletes tend to make it to the major leagues earlier and remain good enough to play later than the norm.   If the peak of a typical career is around the age of 29 or 30 (some would argue for 26 or 27 but for purposes of great players 30 is a pretty common midline) the very greatest players tend to get to the majors by age 20 or 21 and stay in the majors until around age 40.   Less talented players take longer to get to the majors and do not stay nearly as long.  Barring injuries, the bell curve applies to baseball performance and PED users tend to show up as outliers.   Braun  is not an outlier in any way as a young man who made the majors at age 23.  Players who debut at that age are often very good and sometimes organizational mistakes keep youngsters in the minor leagues too long.   This happened to Wade Boggs, who was kept in the minor leagues by Boston for some strange reasons until age 24, whereupon he hit .349 and then proceeded to lead the American League in batting average in five of the next six seasons. 

The career path of PED user Barry Bonds is statistically aberrant.  Bonds produced his best seasons at an age when other great players were falling back towards mediocrity.   In fact several players accused and evidentially shown to have been PED users produced seasons that were far off the expected path of their careers.   The typical PED user of the past has gotten bigger and often faster and have recovered faster from injuries than a normal human. Thus the apparent superhuman numbers put up by men like Bonds and Roger Clemens link directly to their use of PED according to statistical analysis as well as observation.  Bonds, for instance, grew in both shoe and hat size in his 30's!  

Ryan Braun's career path is completely typical of a very good player bordering on greatness, winning Rookie of the Year at age 23 and then having his best season at age 27.   It is very common for a batter to have his best season at age 26 or 27.   Braun's appearance physically is that of a normal athlete, he has not beefed up or had any of the physical symptoms of PED usage and his career path is absolutely normal for his talent level.   The times recorded for his running the bases have been normal and the track of his long hits have been within normal ranges.   There is no evidence at all that Ryan Braun has ever done PEDs other than this one sample which was mishandled by two men who have had the benefit of anonymity.   Meanwhile, Braun's test results, which are by agreement supposed to be secret, were released.  Mark Fainaru-Wada and T.J. Quinn are the ESPN reporters who broke this story back in December.   Only they know who is responsible for leaking the Braun test results.   They are definitely responsible for revealing Braun's name in violation of MLB drug policy.  Investigative reporters are supposed to investigate (I wish more of them were doing some investigating in Washington, DC!) and only they can decide whether it is ethical to reveal information they have uncovered.  Naturally the job implies that, if you find out secrets, you break the story before someone else beats you to it!  Sports reporters are not part of MLB management or the MLBPA and are legally entitled to reveal such secrets.   However, the source(s) did violate MLB policy and may also find themselves facing a defamation lawsuit.  The truly interesting story would (and hopefully will) be the story of the revelation itself.  Who passed the news to ESPN and why did they do it?   Supposedly there were only three people in the world who knew the name associated with the samples that failed during the testing process;  Ryan Braun and the two collectors. 
How can Ryan Braun reclaim his good name when careless reporters add to the damage done by careless and possibly malevolent collectors?  Not one of us should have even heard of this case.  How would you feel if you were accused of child abuse?  Even if the charges were dropped you would be labeled.  You would carry it around like an albatross around your neck.  This is what has been done to Braun.  He should pursue a defamation case against whoever released his name to the ESPN reporters and, if I were Braun, I would spend a good deal of my large paycheck on private detectives vigorously investigating the collectors to discover whether or not they were the source of the leak and whether they could be linked to possession of synthetic testosterone.  The samples tested so ridiculously high that one suspects contamination.  

The chain of custody protocol failure alone was enough for highly respected arbitrator Shyam Das to overturn the potential 50 game suspension.  Go ahead and click on that link.  Das is no rookie, his credentials are impeccable and impressive.   Das has 30 days to deliver a written verdict to MLB and there are rumors that other factors were also involved in his decision.   But chain of custody failure would be enough and MLB representatives should quit issuing "spin" statements and admit that the system worked by being able to identify mistakes in the process.   For MLB to cry about the legal vindication of Ryan Braun now is equivalent to shooting  yourself in the foot,

Other voices:

TMZ "broke the story" that Braun's failed test was a result of another ailment, which quickly became rumors of STD treatments.  It turns out that Braun did not test positive for an STD and was not taking medication to treat an STD.  I think Craig Calcaterra sums things up nicely in the following two short articles:

Ryan Braun got off on a “technicality?” Bull!

Think Braun is still dirty? Fine, but then at least admit you don’t care about drug testing