Per ESPN: Braun Tests Positive, May Face 50 Game Suspension (Part 2)

[Bernman23]

It wouldn't be his fault because it'd an unjust rule as it applied to him. Yes, he would have broken their unjust rule, and have to suffer the consequences under that rule unfortunately. But let's not disassociate ourselves from the fact that the unjust rule would be the root cause of the problem, so that'd be actually what's at fault.

 

Steroids is one of the treatments for cerebral vasculitis. If I had cerebral vasculitis I'd probably only disclose that to medical professionals who could treat the problem and those close to me who I could trust. As far as MLB is concerned, they couldn't help or be trusted. Therefore, I wouldn't tell them anything, and use a masking agent to avoid detection, hoping it would never surface to become an extra problem I had to deal with. And I'd be warranted in doing so because the steroids would be taken for legitimate medicinal purposes rather than to gain an unfair advantage, and people have a right to privacy. HIPPA privacy laws exist for good reason. It's bad enough you have the medical issue, now you are obligated to go around and tell people about it also?

 

It's really not MLB's fault either (outside of the leak). They have to ask to avoid even more abuse of the testing policy. But you can hardly blame the prospective collateral damage victims trying to avoid the bomb from hitting them.

[pebadger]

If it is true, how do you NOT inform them? Simple procedure and he's in the clear. That is an oversite that is just not excusable and I fail to see how he could possibly get off.

What if the medication you are taking is not specifically on the list? Here is the language from the Joint Drug Agreement (JDA):

Any and all anabolic androgenic steroids covered by Schedule III of the Code of Federal Regulations’ Schedule of Controlled Substances (“Schedule III”), as amended from time to time, shall be considered Performance Enhancing Substances covered by the Program. Anabolic androgenic steroids that are not covered by Schedule III but that may not be lawfully obtained or used in the United States (including “designer steroids”) shall also be considered Performance Enhancing Substances covered by the Program. In addition, certain hormones and agents with antiestrogenic activity shall be considered Performance Enhancing Substances covered by the

program. The following is a non-exhaustive list of substances that shall be considered Performance Enhancing Substances covered by the Program:

followed by a "non-exhaustive" list of 58 substances (both specific and general) that are prohibited.

Here's a hypothetical. Braun goes to a doctor seeking treatment for a legitimate medical condition. The doctor prescribes X. Assume Braun asks the doctor and his agent for advice with respect to taking X and compliance with the JDA. He gets advice that X is not a PED. As such, Braun decides that as a matter of personal privacy he does not want to disclose that he is taking X. (He is under no obligation to disclose taking non-prohibited substances).

This is the JDA language regarding the use of otherwise banned substances for legitimate medical reasons:

1. A Player authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption (“TUE”). . . . A urine sample which is found to contain a Prohibited Substance will not be deemed a positive test result if such sample was provided by a Player with an effective TUE for that substance. A Player with a TUE for a Prohibited Substance does not violate the Program by possessing or using that substance.

There is then some language as to how one goes about getting a TUE, followed by this:

3. A TUE shall be effective from the date the Player notified, or caused the issuing physician to notify, the IPA of the existence of the prescription involved,

and shall not be effective for any use or possession of a Prohibited Substance prior to that date. A Player who is determined not to qualify for a TUE may not

challenge a determination that he violated the Program by contending, in connection with a “no fault or negligence” defense or otherwise, that he believed he would qualify or had qualified for a TUE; however, a Player is not otherwise precluded from introducing evidence of medical treatment in support of such a challenge.

The language of this point may be crucial. If it has been determined that a player does not qualify for a TUE, he can't raise that issue to challenge a finding that he violated the Program, but what if there has been no determination, since no TUE was applied for?

Suppose the player can show that he has a medical condition and that he has a valid prescription for an accepted treatment for that condition. Suppose that the player and the doctor both testify that the player specifically inquired about taking the drug and whether taking the drug might present any issues under the JDA. Suppose that the doctor and other advisors to the player, after examining the language of the JDA, that the drug contained no banned substances and that it was not necessary for him to disclose the prescription to MLB, nor was it necessary for him to apply for a TUE. (In a best case scenario, this conclusion would be supported in writing).

Would Braun be able to argue "no fault or negligence" under such circumstances? The last clause of Section 3.G.3 ("however, a Player is not otherwise precluded from introducing evidence of medical treatment in support of such a challenge") seems to anticipate that such an argument can be made in the event that there has been no formal determination as to the issuance of a TUE. The bigger question, of course is whether it's a potential winning argument.

On the one hand, especially in light of how complicated all this stuff is, it is impractical at best and patently unfair at worst to expect the player to have personal expertise in matters related to the JDA. As such, if he takes X after reasonable investigation of the substance and he relies on the advice of doctors and other advisors that taking X will not put him in violation of the program, what else can the player do?

MLB will argue that the underlying principle of the agreement is the imposition of strict liability on the player and that the actions of his advisors and agents (using "agent" in the broader legal sense) does not absolve him of his liability. In the end, the decision to take the substance still rested upon the player, and the "no fault or negligence defense" must be narrowly construed to include only those circumstances which are further beyond the player's control than simple reliance on advice from his own agents. To hold otherwise, MLB will argue, would open to great a "loophole" in the JDA.

Of course, even making such an argument would require a lot of things to be true. First, whatever X is, it would have to be something that is not specifically on the list of banned substances.

Second, it would also have to contain something that is banned but that the existence of that particular "something" would not be apparent after reasonable, competent investigation.

Third, you need to prove that such an investigation was made by the player/his agents in connection with the decision to start taking X as prescribed for treatment of a medical condition in the absence of a TUE. If you don't prove a prior/contemporaneous investigation, I think you're sunk. Showing you looked into the matter only after the fact would imply negligence, and you have to prove "no negligence".

Finally, you have to win the rest of the arguments in the case. Most importantly, you have to show that X is what caused the positive test result. If I'm MLB, I ask why the test subsequent to the positive turned up "clean" if X was the cause of the first positive. Then you have to prove that you had stopped taking X for some reason, or why X caused a positive on one test but not another.

The bottom line is, even if Braun has a really good explanation for the positive, and even if people understand he's not a "cheat" as most people understand that word, he's still got an awful lot of heavy lifting to do to avoid a suspension. Even if he has all his ducks in a row in terms of evidence to support his argument, it's quite possible that the arbitration panel will simply rule that the actions/omissions of Braun's agents do not distance Braun from the strict liability imposed by the agreement. If that's what ends up happening, Braun better hope that the panel provides a written decision that somehow ends up "leaking" to the press, or nobody will ever know the circumstances of the suspension.

[jjfanec]

Is there anyway if what pe and others have described is the case that Braun' suspension could be reduced? Or is it 50 no matter what

[pebadger]

I haven't seen anything in the JDA that allows for flexibility in the "sentence" imposed for a given violation of the program. I don't recall seeing any provision that allows the Commisioner's office (which holds all power/responsibility for imposing discipline under the JDA) any discretion in the matter, except in the case of bans imposed after a third offense. PED penalties are strictly 50-100-lifetime ban.

 

That's actually a good way to run that part of the program, which means it stands in stark contrast to a lot of the rest of the agreement.

[ilovebeer]

Does any one actually think ESPN will apologize for getting the story wrong and ruing a mans reputation. in one word, no.

[Mays Hayes]

Is there anyway if what pe and others have described is the case that Braun' suspension could be reduced? Or is it 50 no matter what

 

I don't know why not. They just reduced Manny's suspension from 100 games to 50 games. Of course the reason for reducing the suspensions would be completely different, but if they can reduce it for Manny, I don't know why they couldn't reduce it for Braun if the circumstances justify it.

[pebadger]

Manny's situation is a potentially a bit different in that he's coming back off the voluntary retired list and effectively suspended himself for an entire season and is getting 50 games on top of that. You can look at that situation from a number of viewpoints. In any event, being on the 'retired" list, but without having gone through the more formal retirement process, adds a twist to that case. Whether it should? I don't know. Would have to look at all the language related to the retirement process.

[Nottso]

People also react to different medications in different ways, not to mention the myriad possibilities of drug interactions to other drugs.

 

I personally am 100% immune to Morphine, and am not alone in this. I think the number is 2% of humans are immune like me.

 

I can't eat grapefruit or drink grapefruit juice due to one of my meds.

 

I have had to change some meds because they interact badly with certain other meds.

 

The point is, we don't have nearly enough information to come to any kind of reasonable conclusions, be they for or against.

[brettac1]

Does any one actually think ESPN will apologize for getting the story wrong and ruing a mans reputation. in one word, no.

I guess I would be surprised if an investigative journalist as accomplished as Mark Fainaru-Wada would just recklessly ruin a guy without having some good information/sources. I hate ESPN, but he's been one of the most connected journalists as far as steroids, etc. go.

[Mays Hayes]

Manny's situation is a potentially a bit different in that he's coming back off the voluntary retired list and effectively suspended himself for an entire season and is getting 50 games on top of that. You can look at that situation from a number of viewpoints. In any event, being on the 'retired" list, but without having gone through the more formal retirement process, adds a twist to that case. Whether it should? I don't know. Would have to look at all the language related to the retirement process.

Yes, it's a completely different situation. But it's not as if they just considered all of last season as games served due to suspension, or he wouldn't have to serve any games going further. Manny's situation is one that I don't think has ever come up before, and probably wasn't addressed specifically in the policy. They seemed to use some discretion in reducing his suspension. If Braun's situation also ends up being a situation that has never occurred previously, or that is specifically addressed within the policy , why wouldn't they also have the ability to use some discretion in his case?

 

All I'm saying is that Manny's situation implies that they may have some discretion in imposing these penalties under unusual circumstances, does it not?

 

[JohnBriggs12]

Does any one actually think ESPN will apologize for getting the story wrong and ruing a mans reputation. in one word, no.

I guess I would be surprised if an investigative journalist as accomplished as Mark Fainaru-Wada would just recklessly ruin a guy without having some good information/sources. I hate ESPN, but he's been one of the most connected journalists as far as steroids, etc. go.

His sources were good (Braun did fail a test), and that fact could result in a suspension (it could). The problem was context the story was put in by ESPN that read "NL MVP fails drug tests, faces suspension (as if that was a foregone conclusion)" which had guys like ESPN employee Mike Greenberg suggesting the MVP vote be re-taken. To make the story even more compelling from ESPN's view were their bringing up comments that Bud Selig had made about Braun earlier. My guess is the journalist reported to his bosses what he had and it was a higher up who chose how the story would be reported. Now if Braun chose to sue for defamation of character and ESPN's defense was they reported factual information and didn't imply Braun was juicing, the fact that their own employee, Greenberg interpreted the report to mean that, could make Braun's case.

 

I just happened to be listening to ESPN 1000's "Talking Baseball" Saturday, and when Bruce Levine discussed Braun, he did throw in the very strong suggestion that Braun's test results were medically related. I don't know if Levine did this on his own or at the directive of higher ups at ESPN who now may fear some blow back on their questionable reporting practices.

[fondybrewfan]

So what is to gain if the test was medication related? He is probably still going to be suspended and 95% of the general public will still label him a roider. If he was taking a medication, didn't inform the league, and failed the test I don't know what the point of all of this is. There has to be a missing piece to the puzzle. Could two different perfectly legal prescription drugs approved by MLB somehow combine to elevate T? I sure as heck don't know. And even if that were a possibility I would have to believe that MLB and various doctors would know about that possibility.

[JohnBriggs12]

"95% of the general public will still label him a roider"

 

That comment makes my point fondybrewerfan. Braun was victimized by how the initial story was reported by ESPN. If the initial story was reported: "NL MVP took prescription drug A for medical condition B, and even though drug A was not on any banned list nor thought to cause a positive test until now, in strict accordance with it's drug policy, MLB is suspending him 50 days, the public reaction would have been a lot less than 95% negative toward Braun and more inclined to be negative toward MLB for it's inflexibility.

 

Most people that are not die hard Brewer fans heard the story once from ESPN and made up their minds. That's why Braun has been harmed both financially (less chance for lucrative national endorsements) and as a future Hall of Famer.

[Nottso]

In many instances, all a doctor knows about a drug is what he's been told by the drug's sales rep. If any of you ever has questions about a medication, ask your pharmacist.

[monty57]

ESPN will not be sued. It is virtually impossible to win a lawsuit against a media outlet for defamation of character, libel or anything of the sort. Plenty of people in the entertainment industry have been wrongly drug through the mud by the media, and they just have to take it. Braun would essentially have to prove that there was malice, which would basically take a statement by the president of ESPN saying they purposely went out of their way to ruin Braun. The media has "worked with" politicians to set things up pretty nicely so that they can say or do almost anything and not be liable for their actions. ESPN's biggest worry would be that people would stop watching, but I'd bet that the next time the Badgers played a game on ESPN, everyone in Wisconsin would tune it, so that's not much of a worry.

 

Now, the person who leaked the story could be sued, and if they worked for MLB, MLB could be sued. However, "protecting their source" is something the media does quite well, so I doubt the person who leaked the story will ever be found out. And, if you were Braun, would you sue MLB while you are still playing?

[burnzy24]

ESPN will not be sued. It is virtually impossible to win a lawsuit against a media outlet for defamation of character, libel or anything of the sort. Plenty of people in the entertainment industry have been wrongly drug through the mud by the media, and they just have to take it. Braun would essentially have to prove that there was malice, which would basically take a statement by the president of ESPN saying they purposely went out of their way to ruin Braun.

I believe the definition of malice in regards to defamation is that there was knowledge that it was false or there was reckless disregard of the truth.

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Braun could make pretty decent argument that there ESPN recklessly disregarded the truth if in fact all along it was his medication that caused the failed test. This is considering that audio interview that was linked in this thread with T.J Quinn who was one of the two reporters who broke the story admitted that he intentionally left out of his story the statements made by Braun's camp, categorically dismissed any of Braun's claims as false, and basically stated that the fact the MLB has never overturned failed test means that Braun is guilty.

[pebadger]

Assuming this appeal is medically related, and that people involved in the appeals process probably had a good idea that it was as soon as the appeal was filed, it leads me to believe whoever leaked this isn't only dishonorably violating the confidentiality provisions of the JDA, they are likely acting with malice as well. Not "malice" in the legal sense associated with libel/defamation, but just in the sense that somebody leaked with the intent to injure, as opposed to some acting out of some misguided notion of a public "right to know".

 

If all that were true, and I had money like Braun has, I might think about costing some other people some money in defending themselves. He probably can't win against most defendants, but if he could use the case as a way of finding the source of the leak, the leaker would clearly be the most vulnerable to some sort of liability. The JDA contains confidentiality provisions, but contains nothing as to how those provisions are to be enforced. Seems to me that it would be easy to convince a judge that private civil enforcement would be the best recourse for anyone who is damaged by a breach of confidentiality.

[sargennm]

ESPN will not be sued. It is virtually impossible to win a lawsuit against a media outlet for defamation of character, libel or anything of the sort. Plenty of people in the entertainment industry have been wrongly drug through the mud by the media, and they just have to take it. Braun would essentially have to prove that there was malice, which would basically take a statement by the president of ESPN saying they purposely went out of their way to ruin Braun.

I believe the definition of malice in regards to defamation is that there was knowledge that it was false or there was reckless disregard of the truth.

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Braun could make pretty decent argument that there ESPN recklessly disregarded the truth if in fact all along it was his medication that caused the failed test. This is considering that audio interview that was linked in this thread with T.J Quinn who was one of the two reporters who broke the story admitted that he intentionally left out of his story the statements made by Braun's camp, categorically dismissed any of Braun's claims as false, and basically stated that the fact the MLB has never overturned failed test means that Braun is guilty.

No. The ultimate defense for libel and slander is truth. You don't even need to get to the Actual Malice/Reckless Disregard tests.

 

The fact is he tested positive for increased testosterone. He faces a 50 game suspension. His camp acknowledged both to be true.

 

Here's their actual statement. In no way to they deny what happened, only that he will be exonerated as the appeal moves forward.

"There are highly unusual circumstances surrounding this case which

will support Ryan's complete innocence and demonstrate there was

absolutely no intentional violation of the program. While Ryan has

impeccable character and no previous history, unfortunately, because of

the process we have to maintain confidentiality and are not able to

discuss it any further, but we are confident he will ultimately be

exonerated."

If MLB has already dismissed the positive test and ruled that Braun will not be suspended, and ESPN reported only that he tested positive, then Braun might have a case. If he's exonerated by the MLB (and I'll believe that when I see it), his laywers won't even consider a lawsuit because it would be laughed out of court.

[monty57]

Here's a link to what constitutes libel (print) and slander (verbal).

 

http://www.medialaw.org/C...ibel_FAQs/Libel_FAQs.htm

 

Important parts:

 

The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.

 

and

 

While on many of these issues the burden of proof is on the plaintiff, the primary defenses to a defamation claim are that the statements are true, are not statements of fact, or are privileged.

 

Braun would have to prove beyond a reasonable doubt that the reporter at ESPN knew that what he was reporting was false.

 

Burnzy24: Braun could make pretty decent argument that there ESPN recklessly disregarded the truth if in fact all along it was his medication that caused the failed test

 

No, Braun would have to prove that the ESPN reporter knew that the medication caused the failed test and instead said that something else caused it. Since no one outside of Braun, MLB and the testing facility know what caused the failed test (if even they know), I think the reporter has a pretty good defense that he didn't know what caused the failed test, and therefore did not recklessly disregard the truth. He printed what he believed to be the truth (and what actually may be the truth).

 

Burnzy24: This is considering that audio interview that was linked in this thread with T.J Quinn who was one of the two reporters who broke the story admitted that he intentionally left out of his story the statements made by Braun's camp, categorically dismissed any of Braun's claims as false, and basically stated that the fact the MLB has never overturned failed test means that Braun is guilty.

 

IIRC, he said that Braun's camp would not show evidence or expand on answers, so he left it out. Showing a bias is not proof of malice, or else we would not have any media in this country. Which is unbiased, Fox News, MSNBC, CNN, ABC, NBC, CBS, The New York Times, The Washington Post? Plus, I believe there is a distinction between a "news piece" and an "opinion piece." Any case would have to be in regards to "news" reported by ESPN, and not something said as an opinion by a commentator. The news is that Braun failed the tests, and that appears to be true. If true, that is supposed to lead to a 50-game suspension, so no slander there. Seemingly every athlete to ever fail a test has said they were innocent, so it would be hard to prove slander if the author wasn't stopping the presses when Braun said "This is B.S." Actually, I believe ESPN has quoted Braun's claims. It's not slanderous if a host says he doesn't beleive the claims.

 

It is very, very hard to win a libel or slander case, and Braun just doesn't seem to have much of a case. He did have an initial positive and the subsequent test showed exogenous testoterone. If that is indeed fact, or were the facts as a reliable source leaked them, then what did the reporters say that was in reckless disregard for the truth?

 

I feel very bad for Braun that this got out. I'm not an attorney, but if if Braun is proven innocent, and I were him, I would try to get MLB to issue a statement of fact, so that the public knows the truth, and would try to find out who leaked the story and go after that person, and that person's employer. However, I believe that if he tries to go after ESPN for slander, he will almost assuredly lose.

 

If he's really upset with them, maybe he could work with the players' union to write something in the next contract that would disallow ESPN from using his image :-)

[jazzytrav]

I'm not an attorney, but if if Braun is proven innocent, and I were him, I would try to get MLB to issue a statement of fact, so that the public knows the truth, and would try to find out who leaked the story and go after that person, and that person's employer. However, I believe that if he tries to go after ESPN for slander, he will almost assuredly lose.

 

I think the first part of this could be an either/or situation. Either MLB issues a statement of fact that absolves him completely, or he goes after the leak. You're right, though...MLB is the most at fault here. Like I said before, they should be extremely embarrassed about this getting out. Even if the end result is that Braun has been taking serious steroids since middle school, MLB still has to answer to the fact that they let out highly confidential information. If I was any other player in the league, I would be a bit leery of telling them anything at this point.

 

If ESPN got their info from a reputable source within MLB, then of course they're going to print it. But I think that also gives Braun the justification to, as you said, disallow them from using his image. If I were him, and this ends up with him not being guilty of PEDs, I would actively try to promote everyone but ESPN. They may have gotten their info from a solid source, and maybe they didn't "lie," but they still made the decision to print it and imply something. There may not be any legal remedy for that, but I hope Braun seriously considers forbidding them from ever making another cent off of him.

[brettac1]

Braun will need ESPN for his image rehabilitation, so he'll cooperate with them. It's a co-dependent relationship, where ESPN destroys an athlete's image, then the athlete comes to do their big "I'm all better now" interview on ESPN. Mike Vick probably being the most recent one.

[BuckyBrewer61]

In many instances, all a doctor knows about a drug is what he's been told by the drug's sales rep. If any of you ever has questions about a medication, ask your pharmacist.

Wow, cynical much?

[NYChez]

I'm reading elsewhere that he may have Graves' disease. It's a thyroid condition where a sympton is bulging eyes. Braun has the look of someone who has this disease, so there could be some truth to this.

[burnzy24]

sargennm wrote:

---

No. The ultimate defense for libel and slander is truth. You don't even need to get to the Actual Malice/Reckless Disregard tests.

However I believe that ESPN also reported that Braun tested positive for a PED, which Braun's camp has denied.

 

The headline from the initial story read "Ryan Braun tests positive for PED"

 

There

is a big difference between failing a test and because of a unknown

side affect of a medication (assuming his story is true) and

intentionally taking performance enhancing drugs like steroids to gain

an advantage. All ESPN knew from their source was that Braun failed a

test and the secondary test showed non-natural testosterone. ESPN then

made their own deduction that this means he was taking PED's and

reported this as fact, despite the fact there are other reasons to have

non-natural testosterone in your body. In this case, using truth as a

defense would be significantly weakened. (Side note I am also not an

attorney but am in law school and just took my advanced torts final

which covered defamation and libel so this is all very interesting to

me.) For instance, there was alibel case we read aboutwhere

a newspaper reported that a man had been indicted for a crime, when in

fact he never was indicted but instead was being investigated for the

crime. The court found that when you use a term like indicted, you must

use the ordinary meaning of the term, which was that they were actually

indicted. The newspaper tried to argue that they had a reasonable

grouds to believe it was true since the he actually admitted that he

committed the crime to a grand jury but the court found that this was

not "substantially close" enough to actually being indicted. Now

Braun's case is obviously different since he is a public figure and he

will need to show actual malice. But if somehow the facts show that ESPN

never actually had proof that he was taking a PED, still reported the

PED part as fact and what he took is not by definition a PED, there

could possibly be an issue. Of course this would also depend on what

MLB defines as a PED.

[Invader3K]

I'm reading elsewhere that he may have Graves' disease. It's a thyroid condition where a sympton is bulging eyes. Braun has the look of someone who has this disease, so there could be some truth to this.

That just sounds like total grasping at straws to me.