BY:  EDWARD KEALY

The offseason following the 2011 Major League Baseball season was marred by a controversy, the likes of which the MLB had hoped it had moved on from.  In mid-December, news broke that one of baseball’s young stars and poster boys for a new era of steroid-less baseball, Ryan Braun, had tested positive for performance enhancing drugs (“PEDs”).[1]  Braun vehemently denied using any PEDs in the following months, and as of late February, Braun won his appeal with Major League Baseball and will no longer face a fifty game suspension.[2]

Major League Baseball, like other major professional sports leagues, essentially consists of two groups: owners and players.  As such, the relationship between these parties is governed by a collective bargaining agreement.[3]   That CBA incorporates “Major League Baseball’s Joint Drug Prevention and Treatment Program” (hereinafter, the “Program”).[4]  Among the purposes of the agreement include: “to deter and end the use by Players of Prohibited Substances” and “to provide for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this agreement.”[5]  The agreement goes on in detail to describe the Program, its application and procedures, as well as the consequences for a violation, including an appeals process.

Overall, there have been two prominent issues throughout this entire controversy.  Notwithstanding that some critics are claiming that Braun won his appeal on a “technicality,” one issue that has not been widely discussed is that the news of Braun’s positive test, which broke headlines in December, should never have been revealed at all.  Section 6 of the Program begins by stating, “[t]he confidentiality of the Players’ participation in the Program is essential to the Program’s success.[6]   Section 6(A) then goes on to state:

“…the Commissioner’s Office, the Association, the Treatment Board, the IPA, the Medical Testing Officer, Club personnel, and all of their members, affiliates, agents, consultants and employees, are prohibited from publicly disclosing information about an individual Player’s test results or testing history, Initial Evaluation, diagnosis,…prognosis or compliance with a Treatment Program.[7]”

The Program later enumerates an exception where either party may disclose details of a player’s results to the public.  However, such disclosures are limited “to the extent necessary to respond to any inaccurate or misleading claims by that Player that could undermine the integrity and/or credibility of the Program.”[8]  Clearly, the rumor of Braun’s positive test result was not released by Braun himself, which suggests that it was released inappropriately as far as the Program is concerned.

Braun has since prevailed in his case.  More specifically, he has gone through the appeals process set forth under the agreement and an arbitration panel ruled in his favor.  Under the rules of the system (a system agreed upon by both Major League Baseball and the Major League Baseball Players’ Association), the Braun matter is now closed.  Regardless of how he won his appeal, he prevailed under the rules and has been exonerated.  Nevertheless, Braun will be hard-pressed to live this down.  The vast majority of this matter should have proceeded under the veil of confidentiality.  Because so much of this information was wrongly leaked to the public, Braun will spend the rest of his career trying to repair his image.  After all, a baseball players’ confidentiality is essential to the success of the Program; unfairly, Ryan Braun is about to find out why. The show must go on, play ball.

 

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