Braun, Biogenesis, and PEDs: How We Got Here

By now, I’m sure everybody and their mother has heard the reports, first broke by ESPN’s Outside The Lines that founder of the Biogenesis anti-aging clinic Anthony Bosch has agreed to cooperate with Major League Baseball on their ongoing investigation over suspected Performance Enhancing Drugs purchased and presumably used by several professional baseball players.

This is, and will likely remain, a very complicated case. In order to really get a hold of the situation, I decided to take my time and retrace the steps of how Milwaukee Brewers slugger Ryan Braun got tangled up in it.

October 2011: Our Story Begins

Ryan Braun finds himself in familiar territory – in hot water with Major League Baseball (Mandatory Credit: Benny Sieu-USA TODAY Sports)

Though it took a few months to leak out to the press, Brewers left fielder Ryan Braun received word that he had failed a mandatory drug test following one of Milwaukee’s playoff games.

According to most sources, he took a second test that came back clean.

Though I would truthfully love to ignore this fact of the process, it cannot be stated enough that the loss of anonymity in the process cost Ryan Braun far greater than almost anything that follows. A process that is supposed to be kept confidential was flushed into daylight, beginning a cycle of “he said, they said” accounts, and numerous examples of sports journalists constructing narratives outside of the actual process. In effect, Ryan Braun was judged from this point forward as guilty.

But here’s where it gets tricky.

See, Ryan Braun won his appeal in the months that followed – the first in baseball to ever accomplish such a feat. The Court of Public Opinion had already come back with a largely sweeping “Guilty” verdict, even after arbitrators handed down a 2-1 decision for Braun based on what was widely reported as a “technicality.”

Here’s why that’s wrong: chain-of-custody is not a “technicality,” it is a legitimate part of the lab-verified testing process. If, at any point, for any player, that process has reasons to be deemed invalid, the entire process has to be considered suspect. It just has to, because otherwise the careful protocols set in place – by both the MLBPA and MLB – are for naught. If you’d like a clearer explanation, Craig Calcaterra and Will Carroll can illuminate you much better than I can.

Besides that fact, it came to light later that Braun during his hearing offered up a DNA sample to prove his own innocence to match with the sample. That offer was denied by Major League Baseball. His defense team was also able to show, under similar circumstances, that the results of his sample being mishandled could be replicated. This fact is not widely reported and has contributed greatly to the flaws in thinking that lead to it being called a “technicality.”

To be clear: I am not making any judgements at this point. These are facts as reported, by and large, by people who have a career in this sort of thing. He may still be dirty, after all this time. I don’t know.

January 2012: Biogenesis Begins

Anthony Bosch is not a real doctor. Biogenesis was hardly a real anti-aging

Though the links seem to be clear between Bosch and Braun, MLB is still expecting to get a suspension out of the clinic founder’s cooperation (Charles LeClaire-USA TODAY Sports)

clinic. In January of this year, the Miami New Times released several documents and evidence it claims supports the long-running theory that Bosch and his clinic supplied innumerable amounts of Performance Enhancing Drugs to over 20 Major League players. The majority of evidence amounted to notebooks – supposedly kept and written by Bosch – in which Bosch wrote the names – or sometimes code names, nicknames, or initials – of athletes next to dollar amounts and in some cases, the names of drugs themselves.

Major League Baseball began by trying to obtain the records from the New Times, a request denied by the paper. They began investigating the clinic and Bosch, even filing suit against the phony doctor himself in order to coax him into cooperation.

It was around this point that Major League Baseball’s strategy began to take shape. They vigorously (and some would say overzealously) began chasing down links that would lead to a credible case.

At the time – and to this day, in fact – no legal authorities are directly involved in the process, thereby stunting some of MLB’s ability to ferret out evidence. They have no subpoena powers, and cannot force anyone under the protection of the Players Union’s collective bargaining rights to cooperate.

Jeff Passan of Yahoo! Sports first broke that in the evidence from the shuttered Biogenesis clinic, Ryan Braun’s name was once again linked to PEDs.

Anthony Bosch himself said in an interview with ESPN that Braun’s statement that Bosch was consulted on the appeal process was truthful. He went further by saying that he had no direct contact with Braun himself, dealing instead with the outfielder’s legal team.

The winds of the scandal seemed to change this week, however, with Major League Baseball securing the cooperation of Anthony Bosch. Per ESPN:

"Major League Baseball will drop the lawsuit it filed against Bosch in March, indemnify him for any liability arising from his cooperation, provide personal security for him and even put in a good word with any law enforcement agency that might bring charges against him."

The lawsuit, by the way, was on the grounds of tortious interference. This is generally described as a legal action taken when no other recourse is available, and most legal experts would tell you that it is very difficult to hold up in an actual case. Still, it is a costly process, and that alone may have persuaded Bosch to cooperate.

What Happens Next?

Now, unfortunately, fans and athletes and media members can only wait to find out what, if any, evidence Anthony Bosch brings to table.

After that happens, it is very likely that Major League Baseball will try to hand down the 100-game suspensions it seeks. 100 games is the precedent set because, by their logic, their connection with Bosch would be tantamount to a first offense of PED usage and the 100-game (second offense) would be for lying to MLB investigators about it.

Obviously, the protections granted by the Union for these 20 (and possibly more) players would allow them to seek a hearing through arbitration – which can be assumed to be the next step for these players. Litigation could and likely will follow after those hearings if the arbitrators rule in the case of Major League Baseball.

Commentary

It’s unclear what will become of the Biogenesis scandal, but it will likely have a lasting impact on Selig’s legacy (Andrew Weber-USA TODAY Sports)

MLB finds itself in a rather sticky situation here, mainly from a PR perspective.

Here they have their guy – Anthony Bosch – ready to testify and blow the lid off what appears to be on par with the BALCO scandal. This guy, by the way, is a man roundly detested by baseball and was even publicly admonished by Major League officials as not credible and unreliable. This is their smoking gun.

Beyond that, you have evidence that amounts to the very definition of circumstantial. It is quite literally scribbled in a notebook. The elimination of drugs and performance enhancers is a noble and righteous cause for baseball. Doing it in a justifiable manner – with tact, procedure, and due diligence is important. That was hardly the case.

Major League Baseball is, in my opinion, making an egregious error here. By setting up their “big fish” as the players – and not the dealers – they are setting a precedence that the only injustice done here is by the athletes. There’s literally nothing stopping figures similar to Bosch in setting up operations and actually making their jobs easier. The onus is on the user, not the supplier, to clean up their act.

This is a problem because it makes a few assumptions: once again Major League Baseball is acting on the assumption that Anthony Bosch’s Biogenesis clinic is the only game in town, so to speak. It is making the assumption that the only time athletes cheat is at a professional level, and that by punishing the player it will ripple out to lower levels.

Of course, MLB is not a legal authority and cannot stop the purchase or exchange of PEDs around the world. But by giving the full weight of its office into legal aid of Bosch, it is sending a message that this man – of all the men in this case – is less the enemy than the rest.

Beyond that, it is ready to punish up to 20 athletes on the suspicion of PEDs, largely in the absence of positive tests for these men. It has (with the help of unscrupulous editors in search of a sexy headline) all but publicly jumped steps ahead of the process to the punishment phase. In all of its zeal to shout “Forget about the ’90s!” it forgot that it still has a responsibility to protect its own product, and part of that is to reserve public judgement until a thorough investigation is completed.

Again, that’s not sexy, but it certainly helps to have your house in order before you start meting out career-ending decisions.

Major League Baseball is both publicly embarrassed and angry at this situation. In the autumn of Bud Selig’s term as commissioner it is quickly becoming the case that will define his term – even though his detractors have largely already done so.

In this case, they once again believe to have their biggest stars dead-to-rights in the midst of a steroid scandal. They are hoping the ends will justify the means if it helps to clean up their image one more time.

For Braun, Alex Rodriguez, Gio Gonzalez and the others who find themselves tied to Biogenesis, it is the tougher of the two roads.

Many of them may turn out to be dirty. All of them may turn out to be clean. If you believe the Joint Drug Program – many of them are.

Either way, the system worked for Ryan Braun. His positive test was overturned. Whether you like it or not – the system made the correct call according to its own procedures (far and away considered the best in professional sports) and showed that the collection process cast considerable doubt as to the veracity of the results.

Now we are faced with a question: either Ryan Braun was taking PEDs – and by that logic, probably had been for nearly 12 years – finally got caught, stopped taking them, and continued to be a great player OR the process that brought his sample to the lab was flawed and caused a variation in the results.

When placed into the perspective of baseball’s Great Steroid Hunt, both of those seem equally likely. And that, by and large, is the problem.

It’s as much about the discussion and politics of it as it is about the process itself. Now Major League Baseball and the Players Association will likely be mired in a political battle that can loom for years, adding one more tarnish to the game’s legacy.

Let’s hope the ends justify the means, whichever way this case lands.