The Ryan Braun Loophole

As most of you have heard by now, an arbitration panel overturned Ryan Braun's 50 game suspension for his positive drug test from last year's playoffs. Braun did not attack the test result directly (which is extremely difficult to do successfully) but instead attacked the "chain of custody" of his sample. The purpose of the chain of custody is to maintain the integrity of the sample by providing documentation of the control, transfer and analysis of samples. The chain of custody requires that from the moment the sample is collected, every transfer of the sample from person to person be documented and that it be provable that nobody else could have accessed that sample.

Anti-doping protocols go to great lengths to ensure the chain of custody is maintained. MLB's Joint Drug Agreement ("JDA") contains twenty-five pages of instructions for how samples are to be collected and transferred to the laboratory. Examples of this include from which side of the player the collector is to stand depending upon which hand the player is holding the cup, how the security seals are to be placed on the sample and that FedEx is the only permitted shipper.

MLB contended that all the guidelines were followed and the chain of custody was not broken. Braun contended that it could not be proven that nobody else could have accessed that sample. The basis for this questioning was:

According to a source close to the arbitration process, the case turned on the security of a urine sample collected from Braun on an October Saturday night in Milwaukee.

The collector – who is jointly hired by MLB and the players’ union – was to send the sample to an independent laboratory by FedEx. Finding the FedEx office closed, the collector stored the sample, which had been sealed, bagged and boxed and carried Braun’s signature, in his Milwaukee-area home, per usual protocol. The collector returned to FedEx on Monday morning.

Note the "per usual protocol". Under most (all?) drug testing regimens, what the collector did is considered appropriate. As one can imagine, it is not unusual for a drug test to occur on a weekend. It is equally not unusual for it not to be possible to immediately send the sample to the laboratory. As anyone who has shipped via FedEx knows, FedEx offices are not always open. And the JDA explicitly states that the collector can't just put the sample in the dropbox. So what is the collector to do if the FedEx office isn't open or the sample can't be immediately sent on its way?

The JDA lays that out, too.

E. If the specimen is not immediately prepared for shipment, the Collector shall ensure that it is appropriately safeguarded during temporary storage.

1. The Collector must keep the chain of custody intact.

2. The Collector must store the samples in a cool and secure location.

And there's the ambiguity that lawyers make their livings on. What is a "cool and secure location"? The generally accepted practice - which the collector applied here - was to take the sample to his home and put it in his refrigerator. Generally accepted practice, however, does not deter the enterprising lawyer. Braun argued that the chain of custody had been broken because it was unclear if the refrigerator in which the sample sat for two days was "secure". Nevermind that there were no signs the package had actually been tampered with.

And the arbitration panel's independent arbitrator (the only one of the three members who really matters because the other two are a representative from the MLB Player's Association and a representative from MLB, and how they would vote is obvious) agreed with Braun. Despite the twenty-five pages of instructions, the JDA - apparently unbeknownst to the parties - did not adequately address a rather frequent scenario.

MLB released a statement in which it "vehemently disagrees" with the panel's ruling. Travis Tygart, the head of the United States Anti-Doping Agency ("USADA", the official anti-doping agency for Olympic sport in the United States), said the ruling was "unreal" and "insulting" to clean athletes. He confirmed that what occurred was standard. "This stuff happens around the world all the time. They're collected at people's homes after the UPS or FedEx or DHL is closed. The DCO (doping control officer) keeps it with them. These are well-trained people whose job it is to maintain it. I'm stunned."

The ramifications of this ruling will be felt not only in MLB but in every anti-doping program around the world. What will surely be known now as the Ryan Braun Loophole has given dirty athletes in every sport a tool to void a positive test and avoid suspension. Apparently, both MLB and the union are in agreement that the JDA needs to be amended to clarify what to do with a sample in situations like this. No doubt other organizations like USADA are re-evaluating their protocols. Of course, even if the Ryan Braun Loophole is closed, there surely are other ambiguities in the JDA for the clever lawyer to exploit.

Braun will not have a positive test on his resume and he avoids suspension. But is Braun "innocent" as he claims to be?

Postscript 1am CST: Jeff Passan at Yahoo Sports goes through the same analysis I did but his is written and sourced better than mine. Worth a read if you're interested: Link.

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