diversionary Sunday: Ryan Braun is NOT “innocent”

not yet, probably not ever
There are no winners in the Ryan Braun arbitration. Major League Baseball used very strong language to defend its testing program, while Braun claimed that the arbitrator’s decision fully exonerated him. Braun will not be suspended, and (still) has a clean record under MLB’s testing program for performance enhancing drugs.

Perhaps it is fitting that baseball fans end up with an argument about Braun, with no conclusive facts available to settle the argument, because that is what baseball offers: how good would Ruth have been if baseball had been fully integrated in his time? how many home runs would Ted Williams have hit if he had not been a fighter pilot for so many years? Willie, Mickey, or The Duke? how the hell did Phil Rizzuto get into the Hall of Fame?

Unless (until) the third arbitrator issues a written decision explaining why Braun won his appeal, these are the facts that I understand to have been unchallenged:

Braun gave a urine sample, then signed something saying that he saw it sealed
the sample arrived at the lab with no evidence it had been tampered with
when tested by the lab, the sample showed ridiculous levels of testosterone, which have no known natural causes

And this:

the guy who took the sample does that sort of thing for a living, for 3 professional sports
the guy followed what he thought was professional protocol by storing the sample in his basement over the weekend
the science does not suggest that a 44 hour gap between collection and lab arrival would change the sample in any meaningful way

Not to forget this:

the process was agreed to by Braun’s union and his employer through a negotiation in which neither side got all of what it wanted
the agreed-upon process is silent as to whether the guy who took the sample should have done more to put it in a FedEx collection box the same day it was taken
per the agreed-upon process, the test results should not have been made public until the player had a chance to appeal
per the agreed-upon process, the only neutral decision maker found that there were no grounds to suspend Braun

Innocent Until Proven Guilty does not apply
The famous concept that an accused person is entitled to a presumption of innocence is one of the most important rights we have as Americans, but it is often misunderstood. It is an absolute protection for people charged by the state with a crime; it has no necessary relevance in other contexts, but is probably related to basic American notions of fair play, including that we should not jump to conclusions until all the facts are in.

The presumption of innocence is a burden of proof allocation in a criminal proceeding, to be applied strictly by juries. Fair play (waiting to decide things until all facts are revealed) is an important American tradition, but people (being people) who are not sitting on criminal juries make up their minds whenever they think they have ‘enough’ factual material.

I don’t have a quick citation available, but in the private process negotiated between Braun’s union and his employer, the burden of proof on the issue of whether the lab results were correct tilted dramatically against Braun: to the extent that the arbitrators had to decide based on the lab results, Braun had to prove that the results were wrong in order to win his appeal. (One could say that at the appeal stage, there was a presumption of guilt.) Fair, or not fair, did not come into this analysis; the union and the employer agreed that these were the rules.

so how did Braun win?
From all press reports, the neutral arbitrator did not like the fact that 44 hours elapsed over the weekend between the collection and sealing of the sample and its delivery into FedEx custody. If the arbitrator ever considered whether or not the sample results were accurate, that has not been reported anywhere that I have seen.

Most people do not realize that criminal juries never find a defendant “innocent”; they consider only whether the state has proven that the defendant is guilty or that the state has not proven that the defendant is guilty. “Not guilty” does not mean “innocent”. Along the way, judges are supposed to consider whether the state has played by the rules (things like Miranda warnings and search warrants) regardless of whether (in theory) the defendant committed a crime or not.

Braun sounds like a good guy. Apparently, his press conference this week at spring training was a tour de force: he was confident, articulate and aggressive. Sorta reminded me of the fearlessness and confidence of Roger Clemens, when he addressed allegations of cheating. (Oh, wait….)

Personally, I think it is more likely than not that Ryan Braun put something in his body before that sample was taken that artificially spiked his testosterone in a way that is consistent with illegal performance enhancing drug use and not consistent with natural processes. I have not seen anything in scientific terms that would make the 44 hours relevant.

what did Braun win?
The arbitrator (apparently) decided that the 44 hours violated the deal that Braun’s union and his employer made. That being the case, it did not matter what the results were: they could not support a suspension under the agreed-upon rules. I can appreciate that any individual wants to ‘clear his name’ against a serious charge like drug cheating, but that is just not what the arbitrator seems to have done.

Unless (until) the arbitrator says more, this is the classic ‘technicality’ based on a process defect that has nothing to do with the main question. Under the rules agreed upon, the employer cannot use even a valid result if the process was defective; the arbitrator decided it was defective.

I have read quite a few opinion pieces about this mess in the last few days, and the only one that makes a compelling case in Braun’s favor is Craig Calcaterra at NBC Sports. His headline sums up his view, but it is worth a good read. (Waiting….)

Here is why I think that Calcaterra is wrong: the compromises in the deal reached by the union and MLB were nobody’s attempt to do ‘justice’; they were the best deal that the players thought they could get (i.e., the best protections for individual players) in the context of the owners pushing for the maximum benefits they thought they could get (the easiest way to catch cheaters). I can acknowledge that the process those parties agreed to is flawed without saying (contra Calcaterra) that “I don’t believe in drug testing”; indeed, I can (provisionally) believe that the “44 hour delay” violated the parties private deal while also believing (subject to being shown wrong on the science) that the “delay” has nothing to do with the main question of whether Braun cheated.

Braun is playing the PR game about as well as it can be played. He insisted from the beginning that he was “innocent” and that the process would clear him. He absolutely ‘won’ the process, as the neutral arbitrator decided he could not be suspended. So Braun cries from the hilltops that he is “innocent”. It is a free country; that is his right. But his shouting does not make it true. At best, he should acknowledge (but never will) that the arbitrator never considered whether he cheated or not.

Constitutional rights such as due process, trial by jury, freedom from unreasonable searches and seizures are part of our great American compact. We all entered into this deal in the Constitution, as amended and as interpreted. Letting a guilty party go free of criminal consequences because the state violated the rules intended to protect all of us is part of that deal, too. Take double jeopardy: in broad strokes, once tried, a person cannot be retried for the same offense, so matter how strong the evidence that later emerges. That does not mean that people must accept that the person is “innocent”; just that the state has lost the right to criminally punish.

On drug testing in MLB, baseball fans never agreed to the private terms negotiated by a union protecting players and employers wanting maximum discretion to impose punishment. Calcaterra may find himself stuck with an either/or choice between any testing regime and acceptance of the results; I don’t see it that way.

For one thoughtful analysis of the institutional mess, see Jere Longman in the New York Times today. For evidence that some guys who are supposed to be protected by the union are skeptical of this pro-player outcome, see this Daily News item on one major league team (well, on one AAAA team).

© Sandy Mattingly 2012