After Braun Suspension, Many Questions Still Unanswered

Major League Baseball suspended Ryan Braun for the remainder of the season on Monday for “violations of the Basic Agreement and its Joint Drug Prevention and Treatment Program,” according to a press release the league issued. The release also included a statement from Braun in which he admitted that he had “made some mistakes” and was “willing to accept the consequences of those actions.” The suspension for the remainder of the season amounts to a 65-game punishment.

A press release with statements from both MLB executives and Braun strongly suggests  the suspension was the result of negotiations between the two sides. We also have this from Bill Shakin of the Los Angeles Times:

Hearing Braun approached MLB proactively, rather than being presented with a proposed suspension and starting to deal from there.

— Bill Shaikin (@BillShaikin) July 22, 2013

But before any such discussions took place, MLB and Braun likely had tentative game plans. MLB may have been planning to suspend Braun for much longer than 65 games. Braun undoubtedly was planning to appeal any such suspension. Braun gave up his appeal and agreed to serve the suspension immediately, likely in return for shorter suspension period.

That’s what we know or can reasonably infer from the information the league provided. But there are many questions  we don’t have answers to; questions that will shape the remainder of the league’s Biogenesis investigation.

1. Was the league planning to suspend Braun for 100 games and if so, on what basis?

As I explained in this post, the Section 7.A. of the Joint Drug Program states:

A player who tests positive for a Performance Enhancing Substance, or otherwise violates the Program through the possession or use of a Performance Enhancing Substance, will be subject to the discipline set forth below. (emphasis mine) 1. First violation: 50-game suspension; 2. Second violation: 100-game suspension; 3. Third violation: Permanent suspension from Major League and Minor League Baseball.

But players’ union chief Michael Weiner said last week that non-analytical positives — those violations arising from evidence other than a failed drug test — fell outside the escalating 50-game, 100-game and lifetime ban in Section 7.A. Weiner suggested that without a failed drug test, players would be punished under the “just cause” provision in the collective bargaining agreement and that suspensions could start as low as five games and go as high as 500.

We don’t know if the MLB planned proceed under Section 7.A. and charge Braun with two separate violations of the Joint Drug Program, adding  up to 100 games. Or whether MLB intended to invoke the “just cause” provision and pursue a suspension even longer than 100 games. It’s also possible that MLB invoked the “just cause” provision in addition to Section 7.A., citing Braun’s statements denying use of PEDs in 2011 (when he successfully challenged a failed drug test in 2011) or with his recent refusal to answer questions when the league’s investigators interrogated him.

This uncertainty is unsettling, as it creates the public perception that the league — and to some extent the players’ union — are bypassing the plain language of the Joint Drug Program because of the breadth of the Biogenesis problem. I’ll have more on this point as the situation unfolds.

2. Does Braun’s suspension amount to a “first violation” even though it’s for 65 games?

MLB’s press release doesn’t say whether the suspension counts as a first time violation under Section 7.A., leaving Braun with one more “strike” before a lifetime ban should he test positive for PEDs in the future.

3. What precedent is set based on Braun’s 65-game suspension?

Typically, a negotiated punishment doesn’t set a legal precedent for how the league will handle suspensions for other players. On the other hand, the arbitrator’s decision following an appeal of a suspension establishes a precedent on how the collective bargaining agreement and Joint Drug Program are to be interpreted and applied. Nevertheless, there are things we can glean from Braun’s punishment that will likely affect how MLB moves forward in the Biogenesis matter.

First, if in fact Braun approached MLB to cut a deal, then MLB quite likely has credible evidence that Braun used or possessed PEDs — evidence in the form of documents and testimony from former Biogenesis employees. And that means the league likely has credible evidence of use or possession by other players. Tony Bosch may be an unsavory character with a shady record, but it appears he provided original Biogenesis documents, explained what they meant and vouched for their authenticity. Yes, he will be subject to vigorous cross-examination if any player appeals a suspension, but Braun’s attorneys (and the players’ union) obviously believed the documents carried enough weight to make a longer suspension stick.

Second, Braun’s 65-game suspension will be used by all sides in future negotiations. Players against whom the league has less weighty evidence — and who are willing to accept responsibility, forgoe an appeal and serve their suspension immediately — will be in a position to negotiate for a shorter suspension. Players with stronger, deeper or longer ties to Biogenesis — and those unwilling to accept responsibility — will be looking at longer suspensions.

We now know what will happen to Ryan Braun as a result of the Biogenesis investigation. But there is much more that we don’t know. Those answers will come in time, raising new questions, beginning the cycle anew.