Finally, Someone Else Gets It, Part II – The Ryan Braun Situation, “Osama” Bud Selig and “Chemical McCarthyism”

It’s no secret that I have been a long-standing and vocal critic of the idea that performance-enhancing drugs (PEDs)are the scourge on baseball the media has made them out to be. I’ve illicited my argument to that effect time and time again on this blog, and the recent discussion of the Ryan Braun situation has only offered another opportunity to point out the fallacy that has been foisted on sports fans about the “evils of steroids.”

In an ideal world, there wouldn’t be PEDs; and there wouldn’t be cheating.  But we don’t live in an ideal world.  The Braun situation exemplifies that, but I fear the real problems inherent in the entire issue of PEDs in sports are being lost because the debate keeps centering on a bunch of half-facts, junk science, and worst of all, indignant presumptions of guilt being tossed about by a bunch of self-appointed moralists and people who have skin in the demonization game. In other words, we’ve become so whipped up over the PED “chemical boogie-man”  that we’ve done a lot of things which are far more morally reprehensible than sticking a needle in your arm.

If the history of American popular culture has taught us anything; it’s that Americans love a crisis. We love a crisis so much we will blow right past facts in order to create the emergency “Oh my God, we must act now” mentality which ultimately leads us to create some really awful solutions.  I first laid out a case to this effect over a year and a half ago. At that time, Ryan Hudson at SB Nation had penned a piece that echoes my sentiments. In his article, Hudson brings up the fact that there is not a proven link between steroid use and prolific home run hitting. Hudson also points out that very assertion is the central theme behind “Steroids, Other ‘Drugs’, and Baseball,” an exhaustive study of the subject done by Eric Walker.  Walker’s work is full of empiric data that casts some serious doubts on the credibility of the claims made by the “steroids are to blame crowd.” Hudson also quotes an piece written by Joe Posnanski that begs the question “What if we are wrong again about steroids?”

The over-arching problem is that nobody wants to ask that question. God forbid we as a culture made a mistake when we rushed to judgement. Not only does it mean we may have been wrong; collectively we Americans have a really big problem with being wrong, but that question begs several others which are far more disturbing. It is that disturbing nature of the examination of the whole issue which keeps it from happening as often as it should; when somebody else takes up the cause it stands out to me.

Enter Charles P. Pierce from Grantland. He has penned what I consider to be the penultimate dissection of the Ryan Braun situation as it relates to the steroid issue as a whole.  This is why I am breaking it down so Pierce’s excellent piece can be laid against not only the arguments I’ve made against the “Chemical McCarthyism” we’ve created, but those aforementioned disturbing questions we as a society need to face.

The system, we are told, worked. That’s always the second-last refuge of scoundrels. The system, we were told after the Watergate scandal, had “worked,” even though it hadn’t, not fully. The system had been truncated by a cheap political pardon, thereby allowing the main miscreant to spend 25 years walking on the beach, fashioning his own myth of persecution and redemption. In the case of Ryan Braun, whose suspension for allegedly taking one of those drugs of which baseball disapproves was overturned by an arbitrator last week, the “system” did not “work” because there should never have been a system in the first place, and Braun does not have his own San Clemente in which to hide. He will have to go out in public at least 162 times this year and own somebody else’s dreadful mistakes. I do not envy him that job.

40 years after the fact, Dick Marple, the Chairman of the Dubsism Advisory board, still has an apoplectic reaction to all things Nixon. I find Pierce’s analogy between the Braun situation and Watergate monstrously interesting, if for no other reason it lends itself to a presumption of guilt.  After all, calling Richard Nixon a crook is like calling a Volkswagen a small, German car.

The more I re-read this, the more it dawned on me that Marple’s reaction to “Tricky Dick” is the same reaction the steroid moralists have to PEDs; table-pounding indignation. The difference is the steroid moralists are less concerned about guilt or innocence; they are interested in letting you know how much they value integrity; ironically, even at the expense of their own.

To me, this situation lends itself to a better analogy; “Osama” Bud Selig and his cronies have been baseball’s version of the Taliban for close to two decades now. While their means of action are not the same, Selig is like the Taliban in the sense he was a creation of the other owners to fight their problems in the same way the Taliban were created by an alliance fighting the Soviet occupation of Afghanistan. Much like the Taliban, Selig has ruled with dictatorial power, yet attempting to maintain an illusion of some semblance of democracy. Much like the Taliban, the presence of absolute power corrupted absolutely; Selig allowed the infiltration into baseball of a PED monster he may not have de facto created, but tolerated it for years because it benefited him. Now the Ryan Braun situation exemplifes the fact “Osama” Bud Selig is waging a failing war against what he tacitly permitted for years.

You may need a freight train to handle the hypocrisy this is going to bring.

A case like Braun’s was the inevitable outcome of what Scott Lemieux of the invaluable Lawyers, Guns, and Money blog calls baseball’s “War on (Some Classes of People Who Use Some) Drugs.” From its very beginnings, the “war” on performance-enhancing drugs in sports, and especially in baseball, has been legally questionable, morally incoherent, and recklessly dependent on collateral damage to make its point. Long ago, I went over to the purely libertarian position on this question simply because any other solution seemed to me to be incompatible with civil liberties and an equitable sharing of power in the workplace — and because every other “war” on drugs that I’d seen had been an enormous waste of time, money, and manpower.

Pierce doesn’t waste any time going after the underpinnings of the entire debate. When he says “legally questionable,” he is pointing out the fact that all drug testing in professional sports is based on agreements in collective bargaining agreements that survive today only because they’ve never been legally challenged. Even the proponents of drug testing trip over themselves when they offer the “integrity of the game” argument as a rationale.

Ask yourself a question: Did you ever wonder why this entire process keeps itself out of courts at all costs? It was an arbitrator who reversed Braun’s suspension, and it is very hard to get a court to reverse an arbitrator’s decision. The punishments involved are only suspensions, not terminations, and the reason for that is simple. Terminations, i.e. getting kicked out of baseball forever means you aren’t part of the player’s union anymore, and therefore are no longer subject to union agreements, which means if you want to challenge getting kicked out, you are no longer locked into a grievance procedure which involves an arbitrator; you can go to court.

In other words, MLB is on a “witch hunt” for people who are detrimental to the “integrity” of the game, and once they find them, they won’t kick them out because ultimately that may expose MLB to court proceedings which it believes it may not win. The dirty little secret is that courts have precedent for throwing out drug-testing procedures based on several criteria, not the least of which is that courts have ruled unions get into legal “gray” areas when they enter into agreements which infringe on individual civil rights, and random drug-testing without reasonable suspicion may be such an infringment.

In and of itself, that should be your first indicator something is seriously wrong here.

Then, there’s the “morally incoherent” charge. Understand that “integrity” is simply a code-word for “job performance,” and job performance is sports really is the bottom line.  MLB is an employer, and like all employers, they have the right to expect their employees not to be impaired on the job, and a s such, employers have the right to fire you if you can’t perform on the job. But when it comes to PEDs, MLB is doing the exact opposite; they are seeking out players who are attempting to improve job performance.  I will come back to this point later.

Then there’s the whole issue of collateral damage. Regardless of how the Braun situation is resolved, somebody is going to get their reputation needlessly trashed. If Braun is clean, the Mike Lupica’ s of the world are going to have eat all the “guilty until proven innocent” garbage they’ve been spewing like  “He wasn’t exonerated. He was acquitted. There’s a difference.”

‘Then, there is the question of Dino Laurenzi Jr., the guy who handled Braun’s urine sample, who in my opinion is being set-up to be the “fall guy” in all of this. He is now forced to release a statement insisting he followed proper protocol and did not “tamper in any way with the samples.” Honestly, Laurenzi is the guy in all of this I find to be the most credible. Braun’s prepared statement smacked a bit of “lawyer-ese,” and I don’t buy a word coming from MLB or the lab people.

MLB and/or the lab it hired looks to be the dirtiest party in all of this; they sound like they have a personal stake in this mess; Braun’s response was measured and legal; MLB’s and the U.S. Anti-Doping Agency’s (USADA) was almost off it’s hinges.

MLB’s official comment was: “While we have always respected that process, Major League Baseball vehemently disagrees with the decision.”  I’ve heard other heated words come from MLB, such as “enraged”  or “livid” concerning the arbitrator’s decision.  USADA CEO Travis Tygert said, “It’s frankly unreal. And it’s a kick in the gut to clean athletes…To have this sort of technicality of all technicalities let a player off…it’s just a sad day for all the clean players and those that abide by the rules within professional baseball.”

Laurenzi is the only one here who doesn’t have millions of dollars at stake. Braun faced of losing 50 games, which translates into about three million dollars in salary,  MLB has been sensitive to this issue ever since the media turned on them, and don’t think that Tygert and his paid pee-testers aren’t turning some decent coin on this PED hysteria.

That should be your second indicator of major flaws; a process to detect the use and enforce the rules against the use of PEDs were clearly the same used for “impairing” drugs, because the reaction to the media-created disfavor of PEDs caused a knee-jerk reactionary solution rather than one well-thought. You also aren’t supposed to notice drug testing has turned into a multi-million dollar business.

Instead of re-thinking the process now that it has been exposed as faulty, and that may be fraught with ulterior (read that as “financial”) motives, we are diving into rationalizations as to why testing is necessary; as if there is some sort of morality which needs defending.

There always have seemed to me to be two main arguments against this position. The first is the question of the player’s health. This is not one to be dismissed lightly, even though, in almost every other context in professional sports, it is always secondary to profits in the mind of management. And the second, more hazy argument is that it is somehow unethical to ingest a substance that will make you play better. Too often, it seems, the former consideration is used to camouflage arguments based primarily on the latter.

The health consideration is doomed to failure in the long run because, well, Science Marches On. Sooner or later, someone’s going to invent a substance that enhances performance without any risk to the athlete involved. The reason this will happen is because whoever invents the stuff is going to get wealthy beyond Warren Buffett’s wildest dreams. Eliminate the health-of-the-athlete fig leaf and all you’re left with is the moral and ethical argument and, on its own, that falls apart with the slightest nudge.

I double over with laughter when anybody tries to trot out the “health of the players” argument. Let me see if I get this straight…Peter Gammons wants me to believe that “the Braun test result tells is that the Commissioner’s Office and the players don’t care if it’s the MVP or a 4A utility infielder, they want a level playing field. Thus, in a sense, this speaks for the sincerity of the program, that it doesn’t protect the faces of the sport or anyone’s favorites, that Ryan Braun gets no different treatment than some kid in the Dominican Summer League.” But on the other hand, “Osama” Bud Selig thinks that he can play a “health” argument for a testing protocol that would allow Ryan Braun to load up on addictive, narcotic pain-killers, chew tobacco, or drink himself to death, but has no right  and drink himself blind, but no right to use even prescribed medication.

That’s important to note because if it turns out this test was skewed by the effect of legitimate medical treatment, Selig and Major League Baseball have a major league problem. Not only can they not hide behind the “health of the players” argument, there would also be a perfect legal reason for somebody to get the entire MLB drug-testing policy scrapped.

Now, let’s go back to that point about MLB seeking out players who are attempting to improve job performance.  It smacks of the “moral incoherency” Pierce mentions, in the sense it destroys the moral and ethical argument for drug testing.

Can someone seriously argue that it is ethical to take a drug to make a performance possible, but unethical to take a drug that makes that performance better? Isn’t making a performance possible at all the ultimate performance enhancement? If there had been a drug that would have given us five more seasons of Sandy Koufax at the top of his game, how would that have been a bad thing, everything else being equal? Sports are rife with drugs. Without drugs of one sort or another, the NFL season would never begin, and the baseball season would end sometime in June owing to a lack of participating teams.

This is really where I feel like I have to wrap duct tape around my head to keep it from exploding.  It’s time to just come out and say it…America is a drug culture.  Turn on your television and tell me how long it takes for you to see a commercial for some prescription or over-the-counter drug. Sporting events themselves are rife with ads for (insert brand of alcohol here). We Americans want our doctors to give us a pill that fixes everything; so why are we shocked athletes might want a little something to boost their performance?

More importantly, why do we care? There’s too many of us who are simply refusing to believe the possibility that Braun may in fact be clean in all of this.

Now we have Ryan Braun’s experience with the “system,” and nobody can be surprised that his urine was badly handled. And, by the way, let’s stop calling it “the sample,” too, OK? That’s misdirection by euphemism, and it works to hide the personal violation that mandatory drug testing truly is. Ryan Braun had to give baseball some urine, and the baseball official tasked with handling Ryan Braun’s urine kept Ryan Braun’s urine in his freezer for 44 hours, which is a long time to keep someone else’s urine, to my way of thinking.

It can’t have surprised anyone who’s watched the casual way constitutional safeguards have been generally tossed aside in drug cases over the past 30-odd years. It can’t have surprised anyone who’s read the revelations about how the criminal justice system has been perverted by bungling crime labs and incompetent medical examiners. (Here in Massachusetts, we are rather the home office of the latter problem.) Ultimately, in any authoritarian solution, the people with the power get lazy, and stupid, and they start making enough mistakes that people get tired of living with them. It’s one of the reasons we don’t have East Germany anymore. And baseball always has had a sweet tooth for the authoritarian solution.

Translation: “The guy who hung on to Ryan Braun’s urine for 44 hours did nothing wrong because our instructions were written by half-bright marmosets. We are now on a nationwide search to find smarter marmosets.”

Until the late 1960s, baseball’s fundamental economic structure depended upon the authoritarian device known as the reserve clause. In the 1980s, it engaged in the authoritarian — and monumentally stupid — collusion strategy to regain the control of its players that it had lost to courts and to arbitrators. It maintained its authoritarian attitude toward racial segregation for longer in its history than any other sport. (That was the direct result of baseball’s hiring as its first commissioner Kennesaw Mountain Landis, who was so enamored of issuing authoritarian dictums from the bench that, as Tim Weiner points out in his excellent history of the FBI, some anarchists sent him a bomb through the mail. And that was before he demanded — and got — dictatorial powers from the baseball owners and authored his own authoritarian solution to the problem of the Black Sox.)

Indeed, looked at from a different perspective, the people who look to baseball because they yearn for constancy in a changing and accelerated world are expressing little more than what Lewis Lapham calls, in a different context, “the wish for kings.”

If the history of world politics has taught us anything, it is that many of the most murderous tyrants began the reigns of terror under benevolent auspices. To me, one of the only noble causes in the whole anti-steroid argument is the defense of players who want the option of not pumping chemicals into their bodies in order to feel competitive with the guy at the next locker. But for the illusion of protecting that option, Selig and the rest of the MLB Taliban stomped all over the rights of all the players.

First and foremost, Ryan Braun shouldn’t have to prove himself innocent; no American should. There’s a reason why the Constitution sets specific protections. Granted, MLB isn’t the government, but when the stakes are as high as they are; the penalties here are 50 games and subsequently millions of dollars; the process needs to be a hell of a lot better defined than it is now.  Barry Petchesky over at Deadspin said it the best – “If the procedure is so fucked up that some dude can keep a jar of Ryan Braun’s pee in his fridge over the weekend, then maybe Major League Baseball should worry less about Ryan Braun’s appeal and more about a chain of custody that relies on a courier knowing the hours of his local Kinko’s.”

But what really galls me in all of this is the use of the word “technicality,” as in “Braun got off on a technicality.” I’m no lawyer, but even I know that “chain of custody” is crucial to ANY bit of evidence to insure it’s integrity. This is why “chain of custody” is mentioned 33 times in the MLB Drug Testing Policy, and it’s why it doesn’t require the supercomputers at NASA to understand why the USADA is pissed by the arbitrator’s decision; their entire pee-testing for-profit business model is built on this “Chemical McCarthyism.” Much like the communist-hunting Senator Joseph McCarthy of the 1950’s, USADA’s raison d’être  is all about finding and rooting out the players who USADA CEO Travis Tygert has judged as not being “clean.”

If “Osama” Bud Selig and his cronies are the Taliban, then USADA is the East German “Stasi ;” they are little more than Selig’s Secret Chemical Police. To understand the true nature of the USADA’s role, imagine s system where cops were paid per arrest, and there’s no constitutional protections against the cops arresting anybody they want…whenever they want.  That’s essentially the role of the USADA; “Osama” Bud Selig forces the players to give the “Stasi” a reason to arrest them, the process by which they are deemed worth of arrest has now been shown to be flawed, and it doesn’t require input from the FBI crime lab to see why the USADA is viewed with suspicion by the players and the union.

As for the Baseball Taliban, they are the ones stuck on “technicalities.” They’ve made their best hay when they’ve offered up a sacrificial lamb; you can’t tell me Barry Bonds and Roger Clemens weren’t thrown under the Federal bus even after MLB lauded both of them. The Baseball Taliban were so sure they could offer up Ryan Braun’s head as a show they will take out a rising star for the sake of the supposed new chemical morality; this game is all about Congress letting MLB keep its anti-trust exemption, and the score of that game gets measured in the number of scalps they hand over as the “dirty cheaters.” McCarthyism, pure and simple.

Lastly, there’s the issue of this “Reefer Madness“-style hysteria. The steroid moralists use this to convince people there is something pernicious to all of society in the issue of PEDs, and even if they happen to be right, they never offer anything tangible to back up the hysteria they create.

The steroid frenzy is of a sad piece with this history. It began, as all drug frenzies do, with a series of scare stories guaranteed to terrify the rubes. Then came the rush to pass laws and regulations without really thinking them through because this was The Greatest Crisis There Absolutely Ever Was. Then came all the people who made careers out of the laws and regulations prompted by the original frenzy. Then came all the reporters and commentators who got rich enabling the people most directly profiting from the frenzy and/or being professionally outraged on behalf of “the fans” but, really, only expressing their own anger at not being allowed to be 14 years old anymore.

You could hear it all again over the weekend. Major League Baseball was crying doom to anyone who would listen. Rob Manfred, MLB’s president of labor relations, took refuge in outraged bafflegab.

“The extremely experienced collector acted in a professional and appropriate manner,” Manfred said in a statement. “He handled Mr. Braun’s sample consistent with instructions issued by our jointly retained collection agency. The arbitrator found that those instructions were not consistent with certain language in our program, even though the instructions were identical to those used by many other drug programs.”

Translated from the original Bureaucrat, this reads, “The guy who hung on to Ryan Braun’s urine for 44 hours did nothing wrong because our instructions were written by half-bright marmosets. We are now on a nationwide search to find smarter marmosets.”

The professional thumb-suckers in my business spent the weekend talking about “technicalities” and being offended by the fact that Ryan Braun held a press conference in which he excoriated MLB for the clownish way its “system” had hung him out to dry. People who denounce him for engaging in “victimology” overlook the fact that he really was a victim. Where does he go to get his name back? Why did we know about him at all while his case was still under appeal? Why, indeed, was any action taken at all while his case was still under appeal?

(“No, no!” said the Queen. “Sentence first — verdict afterwards.”)

The “war” on steroids always has been Kafka rewritten by Lewis Carroll. It is always going to have victims like Ryan Braun — or, worse, some player is guaranteed one day to be the victim of a demonstrably false positive result — because that is the nature of all authoritarian solutions. Once, when Mick Jagger and Keith Richards received preposterously heavy sentences after being busted for pot, a British newspaper thundered in response, “Who breaks a butterfly on a wheel?” New butterflies, same old wheel.

No matter how thin you slice it, its still baloney. Major League Baseball is now trying to police a problem to which it gave tacit approval, it cares little who it steamrolls in the process of saving its own face, and all of this mess stems from the fact this is another issue where we in this country allowed an easy belief  supplant a hard truth. We are a “quick fix” culture, we are a “drug culture,” and we are killing ourselves with a silly “my drugs are OK, but yours aren’t” argument.

About J-Dub

What your view of sports would be if you had too many concussions

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