Exploring legal implications of Ryan Braun's suspension
Major League Baseball's suspension of Ryan Braun for 65 games is a stunning development and decisive victory for MLB in its war on performance enhancing drugs. It also raises a number of important legal and business issues for Braun, Alex Rodriguez and other players who may be implicated in the Biogenesis scandal.
Braun will likely avoid any criminal charges in connection with his purchase of PEDs. For one, Braun's statement of admission carefully avoided any specifics. If anything, it seemed more like a statement of regret than owning up to actual errors. Braun acknowledged he "made some mistakes" and apologized for disappointing many, but he did not say he used, purchased or distributed PEDs. Had he done so, he might have drawn the attention of law enforcement as to the possibility of interstate drug activity. Keep in mind, the distribution, sale and use of illegal steroids and other performance-enhancing substances violates federal drug trafficking and distributing laws. Those laws include the Controlled Substances Act, which outlaws the trafficking of a wide-range of substances.
Braun also noticeably made the admission in the form of a statement. He has not (yet) agreed to answer any follow-up questions and there's a good chance he won't for a while. Braun will probably refrain from providing specifics until after the statute of limitations of potential criminal charges have expired.
Lastly, Braun may have assurances from Major League Baseball that it will make a good faith effort to not share information about him with law enforcement. While MLB has to comply with any subpoenas, not voluntarily sharing information with law enforcement and limiting what is shared could prove of value to Braun. It would also help to explain Braun's willingness to accept a 65-game suspension without a fight.
As part of a successful effort to challenge a positive drug test result, Braun attacked the character of the test collector, Dino Laurenzi Jr. in February 2012. Laurenzi had -- as Comprehensive Drug Testing, Inc. protocol dictated -- carefully stored Braun's sample over a weekend while awaiting for a local FedEx store to open. Braun asserted, however, that he was "a victim of a process that completely broke down." He also charged that he and his legal team had "learned a lot of things" about Laurenzi, and that those "things" raised suspicions. Braun never specified these supposedly suspicious "things", but Laurenzi said the situation "caused great emotional distress for me and my family."
It would be understandable if Laurenzi wanted to sue Braun for slander. Braun's comments had the effect of ridiculing Laurenzi and causing observers to question Laurenzi's competency and even truthfulness. However, a slander suit would probably fail.
For one, Braun carefully avoided saying Laurenzi's name, instead calling him "the collector". While slander does not require that a name is mentioned, especially when it is obvious who is under attack, the absence of Laurenzi's name works in Braun's favor. Also, slander normally requires specificity and allegation of false facts. Braun, it seems, only offered an opinion of Laurenzi and he never mentioned the "things" he supposedly learned about him.
The Brewers are set to pay Braun $133 million over the next eight years as part of a 2011 contract extension. Given Braun's suspension, the Brewers could seek to void the remainder of his contract. The decision to do so would involve a careful calculus of baseball and the law. Braun has been one of the best players in baseball over the last seven seasons and, at age 29, is in his prime. Then again, how much of Braun's success has been aided by PEDs? What kind of player will he be after his suspension? Will he still generate ticket sales and TV ratings now that he has all but admitted to cheating and lying?
If the Brewers decided to void Braun's contract, they would likely cite two paragraphs in the Uniform Player Contract. Paragraph 7(b)(1) allows for contract termination if a player "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules." Paragraph 7(b)(3) allows the club to do the same if a player "fails, refuses or neglect to render his services hereunder or in any manner materially breach this contract."
On the surface, Braun's admission would seem to easily prove he failed to be a good citizen and good sportsman, and that he disobeyed team rules. Braun also says he's "willing to accept the consequences of his actions." The problem for the Brewers -- and the same is true of the Yankees if they try to void Alex Rodriguez's contract -- is that teams have repeatedly failed in efforts to void contracts in the past. This is true in circumstances much worse than a player using PEDs, such when former Padres pitcher Lamar Hoyt was charged with felony drug offenses and pleaded guilty to two misdemeanors in 1983.
Through the grievance process, the Players Association would aggressively challenge any attempt by a team to void a player's contract. That is true for unpopular players, including Rodriguez. The MLBPA would do so not only to protect the player, but also other players as the the Players Association wants to avoid a precedent of "guaranteed contracts" being voidable in any circumstance. A more likely outcome would be for the Brewers or Yankees to negotiate buy-outs of Braun and Rodriguez's contracts so they would receive a substantial amount -- perhaps 70 percent -- of the remainder of their deals and then become free agents. There is precedent of MLBPA permitting buyouts, including when the Rockies paid Denny Neagle about $16 million of the remainder of a $19.5 million deal after he was charged with soliciting a prostitute.
Major League Baseball has long been frustrated by the ability to suspend players only upon a positive test result. Players and their personal trainers have developed sophisticated ways of avoiding positive tests. Even in the case of Braun testing positive in 2011, he avoided suspension on a technicality.
Commissioner Bud Selig is now is turning to the Just Cause provision of the Joint Drug Agreement. The provision permits MLB to suspend a player for participating in the sale or distribution of a prohibited substance. MLB, Braun and the Players Association agreed, without a legal fight, that a 65-game suspension was appropriate for him under this clause. Baseball's evidence was developed in part through interviews with Biogenesis Director Tony Bosch, who MLB sued in March and who is now cooperating.
Rodriguez -- and perhaps as many as two dozen other players connected to Biogenesis and Bosch -- is expected to be suspended through the Just Cause provision. While the Braun situation ended amicably, the same may not be true for Rodriguez and other players. If a player is suspended without his cooperation, he and the Players' Association may challenge the suspension through the grievance process.
To the extent Baseball bases its suspensions on the testimony of Bosch, suspended players may argue several points. First, MLB portrayed Bosch as a drug dealer in its lawsuit against him. Now, he is suddenly believable? And is Bosch helping Baseball to help himself if law enforcement pursues him, so that the league would put in a good word? If so, would he have an incentive to exaggerate to make himself seem more useful?
Second, Braun accepting a 65-game suspension does not create "precedent" in a legally-binding way. Braun's decision to accept blame, it can be argued, is independent of the decision of any other player implicated by Bosch. It is more like a settlement of a case before it goes to a jury, which carries no precedent, than a precedent-setting verdict.
Third, the Just Cause provision does not specify the quality of evidence and information needed to be triggered. That is not a defense as much as an opportunity for a player to argue: let's let independent arbitrators clarify the provision.
Fourth, the Just Cause provision, unlike the 50/100/lifetime scale for positive tests, does not indicate how long suspensions should last. While the scale could be argued to extend to the Just Cause provision, Braun's 65-game suspension suggests it does not. A player suspended under the just cause could thus argue that independent arbitrators are needed to determine length of penalty.
When Baseball sued Biogenesis and its officials in March for tortious inference with players' contracts, many observers scoffed at the suit. The suit claimed the clinic and officials induced players into breaching their contracts by convincing them to buy banned substances. Given that the players probably knew exactly what they were buying, the lawsuit's chances for success seemed low.
But the value of litigation is not solely about the merits of a claim. MLB and its attorneys correctly predicted that Biogenesis officials would not risk the time and money on attorneys necessary to defend themselves. Baseball's attorneys also know those officials could face criminal charges, which might become less likely if they seem cooperative. The strategy worked: Bosch agreed to cooperate with MLB and turned over records that implicated Braun and other players.
Other clinics that "work" with players are now on notice that they too could be sued. Other sports leagues, moreover, could embrace the strategy. If the NFL, for instance, learns that a clinic is supplying PEDs to NFL players, it will think more seriously about suing the clinic.
The cost of helping others cheat has clearly gone up.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.