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Saturday, February 25, 2012

Was there really a violation of chain of custody protocol in Ryan Braun’s PED case?

Braun’s argument during his January appeal in New York City was that the courier who collected his urine made a number of against-protocol moves after leaving the testing area. But were mistakes really made?

The courier did not immediately head to a FedEx Office after collecting Braun’s sample following an early-October game because it was late on a Saturday night and he figured the store would be closed. Braun (or, rather, his lawyers) argued in January that the courier’s action was against policy, but the MLB-MLBPA joint drug agreement states that “specimens cannot be placed in a FedEx Drop Box” and the five FedEx Office locations closest to Miller Park are all closed before 9 p.m. on Saturdays. In fact, the location closest to Miller Park — just 3.28 miles away — isn’t open at all on Saturdays.
Also, none of the FedEx Office locations in the Milwaukee area ship items out on Sundays. So instead of giving the sealed cup of urine to a FedEx Office employee at some point Sunday and hoping for proper handling, the courier followed the terms of the MLB-MLBPA joint drug agreement (see pages 37-39) by storing Braun’s urine sample in a secure refrigerator at his residence until Monday morning, when FedEx could finally get the shipment to the appropriate testing lab in Montreal.
The MLB-MLBPA joint drug agreement fully allows for temporary storage by couriers — people who are trained and paid to handle drug test samples, and do so as a profession — as long as the specimen can be “appropriately safeguarded,” kept in a “cool and secure location,” with “chain of custody intact.” A refrigerator in the private residence of a trained doping officer would seem to fit those criteria.
So if the courier is allowed to temporarily store samples on his own, and he did so in his own residence, where exactly is the chain of custody issue? And why did Das rule to have the suspension overturned?

 

Dan Posted: February 25, 2012 at 11:50 AM | 35 comment(s) Login to Bookmark
  Tags: brewers

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   1. Dan Szymborski Posted: February 25, 2012 at 02:02 PM (#4068590)
The courier did not immediately head to a FedEx Office after collecting Braun’s sample following an early-October game because it was late on a Saturday night and he figured the store would be closed. Braun (or, rather, his lawyers) argued in January that the courier’s action was against policy, but the MLB-MLBPA joint drug agreement states that “specimens cannot be placed in a FedEx Drop Box” and the five FedEx Office locations closest to Miller Park are all closed before 9 p.m. on Saturdays. In fact, the location closest to Miller Park — just 3.28 miles away — isn’t open at all on Saturdays.

Except, of course, it wasn't late on a Saturday night. The Brewers only played a single game on Saturday in October, NLDS Game 1, which started at 2:00 PM and was over at 4:44 PM

   2. Tripon Posted: February 25, 2012 at 02:05 PM (#4068592)
The more I read about this, the only conclusion I can reach is that the courier was a lazy bastard.
   3. Dale H. Posted: February 25, 2012 at 02:08 PM (#4068596)
A refrigerator in the private residence of a trained doping officer would seem to fit those criteria.
If he sat and watched the refrigerator for 48 hours in a row, maybe. Or had a padlock on the fridge in order to prevent his roommates from accidentally drinking the pee he routinely had in there on weekends, sure. But that probably didn't happen. We don't know what kind of parties this anonymous person throws, we don't know if his/her boyfriend/girlfriend is a juicer or an insane Cardinals/Cubs fan. If anyone else had access, then the chain of custody was broken.

Personally, the whole "steroid concentrations of eleventy bajillion times higher than we've ever found before" makes me a bit suspicious, and that combined with the issues that were reportedly found, is enough to keep me from convicting the doe-eyed player.
   4. PepTech Posted: February 25, 2012 at 02:13 PM (#4068599)
Some ESPN 'expert' on the local radio was saying on Friday it wasn't even in his fridge, it was just on his desk at room temperature. Is there a transcript I missed, or is everyone just making stuff up?

Does he have roommates? Does anyone really know anything?
   5. Eugene Freedman Posted: February 25, 2012 at 02:32 PM (#4068613)
The actual transcript will never be released. Even the arbitrators opinion and award are confidential because it's under the Joint Drug Agreement. Therefore the findings of fact are confidential as part of the award. It's just conjecture and violations of confidentiality on the part of MLB that is leaking things in this case.

The important thing to note is that MLB had the burden of proof in a disciplinary case. It failed to meet its burden. Rather than cast doubt on Braun they should be looking in the mirror and wondering why they are so bad at proving their case.
   6. Slapinions Posted: February 25, 2012 at 02:35 PM (#4068615)
the five FedEx Office locations closest to Miller Park are all closed before 9 p.m. on Saturdays. In fact, the location closest to Miller Park — just 3.28 miles away — isn’t open at all on Saturdays.


Huh? The last time I checked the FedEx office across the street from my job is open past 9 on Saturdays, and it's only about a 10 min ride from Miller Park. And if I'm wrong about the time, I sure as heck aren't wrong about them being open on Saturday, because I've been there on the weekend.
   7. Srul Itza Posted: February 25, 2012 at 03:02 PM (#4068634)
It's just conjecture and violations of confidentiality on the part of MLB that is leaking things in this case.


This is the part that is really annoying. The Players were promised confidentiality, and it keeps getting breached, over and over. This is either MLB or their testers, but in either case, I would hope that the next time around, the Union insist on some teeth in the confidentiality provision -- requiring a full scale, serious investigation, conducted jointly by MLB security adn the union, and with serious sanctions if it is found that anyone other than the player or his representatives was responsible for the leak.
   8. Brian Posted: February 25, 2012 at 04:42 PM (#4068694)
Where are people getting all these details if the record is sealed. How many times did he test positive? I just heard someone say he failed 2 tests, is this just more idiocy?
   9. drdr Posted: February 25, 2012 at 05:09 PM (#4068709)
Well, both A and B sample had to be positive, so...
   10. spike Posted: February 25, 2012 at 05:15 PM (#4068714)
Where are people getting all these details if the record is sealed.

They are sports writers - they either make them up or pass along illegally obtained/speculative information for page cli...uh, the people's right to know. I mean, in the comments section of the article, the author claims that his mind is far from made up - not far enough to keep from publishing an article that argues the COC wasn't broken based on unconfirmed reports and tweets apparently - but inside, where it counts.
   11. Brian Posted: February 25, 2012 at 05:19 PM (#4068717)
Thanks. I've tried to find as much online info as I can but I kept thinking I was missing the part where real facts were coming from. In the guys fridge? On his desk in his basement? Where does this stuff come from? I couldn't believe it was all conjecture and BS.
   12. Misirlou's been working for the drug squad Posted: February 25, 2012 at 05:19 PM (#4068718)
Some ESPN 'expert' on the local radio was saying on Friday it wasn't even in his fridge, it was just on his desk at room temperature. Is there a transcript I missed, or is everyone just making stuff up?

Does he have roommates? Does anyone really know anything?


Nobody knows nuthin'

One guy says there were 18,000 fed ex locations open, another says none were. This guy says Fed Ex doesn't ship out on Saturdays, that guy says there was at least one still shipment available. This guy says it was late Saturday night, but the game ended before 5:00. Someone says the collector is required to get it to the courier immediately, but someone else says he's allowed to hold on to it. Since it's apparent that no one knows what the rules or circumstances really are, it's pointless to argue any more, as anyone can pick any set of "facts" to make their argument and no one can with confidence say they are wrong.
   13. birdlives is one crazy ninja Posted: February 25, 2012 at 05:40 PM (#4068724)
Except, of course, it wasn't late on a Saturday night. The Brewers only played a single game on Saturday in October, NLDS Game 1, which started at 2:00 PM and was over at 4:44 PM

Doesn't that assume that Braun immediately stepped off the field and gave a sample? It's possible that he showered, fielded questions from the media, greeted guests, and then gave a sample. If that happened, maybe the courier didn't get the sample until 7 or 8 pm and he or she doesn't look as much as a lazy ass.
   14. RB in NYC (Now Semi-Retired from BBTF) Posted: February 25, 2012 at 05:45 PM (#4068726)
Does't that assume that Braun immediately stepped off the field and gave a sample? It's possible that he showered, fielded questions from the media, greeted guests, and then gave a sample. If that happened, maybe the courier didn't get the sample until 7 or 8 pm and the courier doesn't look as much as a lazy ass.
There must be rules about that sort-of thing, right? Obviously this is another element of the testing policy/procedure about which we have no idea, but there must be some kind of stated policy that a player has X minutes (or hours) after being informed of the test to actually give the sample.

EDIT: Of course, that assumes MLB and the MLBPA managed to come to a reasonable solution to an obvious problem. So I see the flaw in my logic.
   15. birdlives is one crazy ninja Posted: February 25, 2012 at 05:47 PM (#4068729)
If he sat and watched the refrigerator for 48 hours in a row, maybe. Or had a padlock on the fridge in order to prevent his roommates from accidentally drinking the pee he routinely had in there on weekends, sure. But that probably didn't happen. We don't know what kind of parties this anonymous person throws, we don't know if his/her boyfriend/girlfriend is a juicer or an insane Cardinals/Cubs fan. If anyone else had access, then the chain of custody was broken.

From article, "The MLB-MLBPA joint drug agreement fully allows for temporary storage by couriers — people who are trained and paid to handle drug test samples, and do so as a profession." If the courier is indeed a "profession," it stands to reason that he was trained to prevent his buddies from handling the sample in a drunken stupor.
   16. birdlives is one crazy ninja Posted: February 25, 2012 at 06:03 PM (#4068735)
Obviously this is another element of the testing policy/procedure about which we have no idea, but there must be some kind of stated policy that a player has X minutes (or hours) after being informed of the test to actually give the sample.

I took a quick scan of the joint drug agreement between Major League Baseball and its Players Association on mlb's site. From Section VIII, "The Club Representative, accompanied by the Chaperone, shall notify each player on the test list immediately after the Club Representative’s review of the test list, or upon the player’s arrival at the ballpark. The Chaperone will note the time of notification on the test list next to the player’s name. The player must check in at the collection facility within 15 minutes of notification. The player shall be monitored by the Chaperone at all times between the time of notification and the time the player checks in at the collection area."

Once the player is notified, he has 15 minutes to give a sample, but who knows when Braun was notified.
   17. spike Posted: February 25, 2012 at 06:12 PM (#4068738)
Here's a nice ESPN article with several conflicting anonymous sources. You can pick and choose to support whatever theory you prefer.

Link
   18. birdlives is one crazy ninja Posted: February 25, 2012 at 06:18 PM (#4068741)
The collector, identified by two people with knowledge of the case as Dino Laurenzi Jr., took the sample at about 4:30 p.m. on Saturday, Oct. 1, after Milwaukee opened the playoffs with a 4-1 win over Arizona, and left Miller Park about 30 minutes later with the urine in a triple-seal container manufactured by Capitol Vial. Braun said the collector's son was with his father at the ballpark.

The game didn't end until 4:44 pm. Braun gave a sample during the game?
   19. Brian Posted: February 25, 2012 at 06:23 PM (#4068747)
One last question (And thanks for the responses so far): Was it synthetic testosterone or just an enormous amount of testosterone?
   20. birdlives is one crazy ninja Posted: February 25, 2012 at 06:31 PM (#4068753)
Also from the ESPN article.

During the gap, the sample was at the collector's home, and he placed it in a cool, dry area on a lower level, the people familiar with the case said. However, the collector didn't document his storage procedures, one of those persons said.

Here is literally the entire language regarding temporary storage from the joint agreement (see page 39).

If the specimen is not immediately prepared for shipment, the Collector shall
ensure that it is appropriately safeguarded during temporary storage.
1. The Collector must keep the chain of custody intact.

2. The Collector must store the samples in a cool and secure location.


There is no requirements for documenting the storage procedure in the joint agreement.
   21. Dale Berra of Seville (was Rennie's Tenet) Posted: February 25, 2012 at 06:34 PM (#4068754)
The Fedex website seems to say that there are 15 manned locations within 12 miles of Miller, and that the latest Saturday dropoff would be at 5:00, at Fedex's main downtown and airport offices. Offices open later than that seem to be Kinko's, which would be open for other purposes.
   22. KJOK Posted: February 25, 2012 at 06:35 PM (#4068755)
It was synthetic testosterone.

I think most of the comments on most sites are missing the point (although understandable, as we don't have the arbitrator's written reasoning).

This really has nothing to do with whether the sample was tampered with (it apparently wasn't), or if it was left out at room temperature, or WHETHER Braun is guilty. All it has to do with was if the bargained procedures were followed. If for example the procedures said "the sample must be tossed in the air three times", then Braun's lawyers are arguing it was only tossed in the air two times. The abitrator has agreed with Braun's side, and says MLB cannot suspend Braun because the sample was only tossed in the air two times. Doesn't mean tossing the sample in the air impacted the chain of custody, or somehow impacts the science or the results of the testing.

   23. birdlives is one crazy ninja Posted: February 25, 2012 at 06:38 PM (#4068757)
All it has to do with was if the bargained procedures were followed.

And I can't see the breach at this point? As far as I can tell, there's nothing in the joint agreement even specifying when the sample must arrive at Fed Ex. EDIT: Line 7 (page 37) states that the sample must arrive at Fed Ex the same day as collection. But line E on page 39 allows for temporary storage.
   24. RB in NYC (Now Semi-Retired from BBTF) Posted: February 25, 2012 at 07:00 PM (#4068769)
And I can't see the breach at this point? As far as I can tell, there's nothing in the joint agreement even specifying when the sample must arrive at Fed Ex. EDIT: Line 7 (page 37) states that the sample must arrive at Fed Ex the same day as collection. But line E on page 39 allows for temporary storage.
Two issues seem to be at play here: First, Line 7 says that samples must be sent the same day "absent unusual circumstances." Presumably, Das could have decided that the collector not knowing when FedEx was open did not constitute an "unusual circumstance."

Second--and more importantly--we don't actually know what happened. What we have are a bunch of "sources say" and the like, some of which (like the time of the sample, as you pointed out in #18) don't seem to mesh in a meaningful way with known facts.
   25. KJOK Posted: February 25, 2012 at 07:11 PM (#4068778)
I'm sure what MLB argued was that there was no breach. But I've seen many comments talking about how the mediator doesn't understand the science, and that the samples couldn't be tainted, or whether FexEx was open etc. and my point is that the science and other factors are irrelevant to his decision, as apparently Braun's camp did not question the scientific validity.

His job is strictly to figure out if the procedures outlined in the collective bargaining agreement were followed, as that's what Braun's lawyers were arguing. An his decision was that in this case the procedures weren't followed, so even if the fact that they weren't followed had NO impact on the test results being valid or invalid, he ruled in Braun's favor regarding the setting aside of the suspension.
   26. birdlives is one crazy ninja Posted: February 25, 2012 at 07:22 PM (#4068784)
First, Line 7 says that samples must be sent the same day "absent unusual circumstances." Presumably, Das could have decided that the collector not knowing when FedEx was open did not constitute an "unusual circumstance."

Actually, the languages says "should be" not must be. Here's the entire language, "Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected." I think that's a subtle but important difference. And I can't seem to find which FedEx offices were open around the ball park on a Saturday afternoon.
   27. fracas' hope springs eternal Posted: February 25, 2012 at 07:39 PM (#4068792)
As far as I can tell, there's nothing in the joint agreement even specifying when the sample must arrive at Fed Ex. EDIT: Line 7 (page 37) states that the sample must arrive at Fed Ex the same day as collection. But line E on page 39 allows for temporary storage.

The protocol allows for temporary storage by the courier, which is FedEx. It does not allow for temporary storage by the collector, which is the guy who took it home for the weekend. Because the collector knows who's sample it is, there's no confidentiality while he has it, so it's important that he hand off the sample ASAP.

Also, the joint agreement doesn't explicitly require documenting the storage procedure, because that's implicit in: "1. The Collector must keep the chain of custody intact." If the collector doesn't document where the sample was at all times until handed off to the courier, there is no chain of custody. Now, the collector may be able to claim after the fact that he knows where the sample was, but that wouldn't fly with most judges – they'll insist on contemporaneous records. And unless he lives alone in a home he owns (no roommates, relatives, or landlords with keys), he can't document what happened while he slept. Since he apparently brought his son with him to work (real professional while collecting urine samples), that seems unlikely.
   28. birdlives is one crazy ninja Posted: February 25, 2012 at 07:49 PM (#4068797)
The protocol allows for temporary storage by the courier, which is FedEx.

The protocol allows for temporary storage by the collector. See the language I quoted in post 20.

Now, the collector may be able to claim after the fact that he knows where the sample was, but that wouldn't fly with most judges – they'll insist on contemporaneous records. And unless he lives alone in a home he owns (no roommates, relatives, or landlords with keys), he can't document what happened while he slept. Since he apparently brought his son with him to work (real professional while collecting urine samples), that seems unlikely.

This is where the language gets interesting from the Hardball Times and ESPN article. The HBT article says the sample was placed in a, "secure refrigerator at his residence until Monday morning," while ESPN writes the sample was placed, "in a cool, dry area on a lower level." Nice spin on both sides.
   29. bobm Posted: February 25, 2012 at 07:52 PM (#4068800)
His job is strictly to figure out if the procedures outlined in the collective bargaining agreement were followed, as that's what Braun's lawyers were arguing. An his decision was that in this case the procedures weren't followed, so even if the fact that they weren't followed had NO impact on the test results being valid or invalid, he ruled in Braun's favor regarding the setting aside of the suspension.

This is perfectly analogous to the players' strict liability. If a player fails a (properly administered) test, it is not a valid defense to argue that he took the PED unknowingly through an over-the-counter supplement or with a doctor's prescription about which MLB was not given prior notice.
   30. Howie Menckel Posted: February 25, 2012 at 10:05 PM (#4068850)

At least those who assume Braun is guilty are having as much fun as those who assume he isn't, it appears.

   31. Walt Davis Posted: February 25, 2012 at 10:18 PM (#4068853)
Ah-ha!!!

"Hi, I'm here to collect Ryan Braun's urine."

"We're tired of you e-bay weirdos."

"No, I'm with the drug lab, Braun has been selected for a test. He has 15 minutes to give me his urine."

"C'mon, man, it's the playoffs and the game starts in 30 minutes. Can't this wait until after the game?"

"Sorry sir, those are the rules besides my son is waiting out in the car for me."

"I bet your son would love to see a playoff game."

"Boy would he!!"

"Well, look, I've got this friend, he's got one of those private boxes and I know they're nowhere near full today. I can get you in no problem."

"Gee, I don't know."

"Then you can bring him down to the locker room later, he can hang out with all the players and when Ryan's free, he will come give you a sample."

"Well, I guess that would be OK. Will I still be able to get the sample to FedEx on time?"

(Crossing fingers behind back) "We ship stuff late on a Saturday all the time."

"Gosh, thanks. Say, I didn't catch your name."

"Ummm ... just call me Doug."
   32. The Yankee Clapper Posted: February 25, 2012 at 11:12 PM (#4068866)
This really has nothing to do with whether the sample was tampered with (it apparently wasn't) . . .

We don't really know whether there was an opportunity to investigate tampering. I haven't seen anything indicating the lab preserved the packaging for every sample. If they toss the packaging after giving it a cursory inspection on arrival, you can't fault Braun for not being able to prove tampering, and it provides further support for the proposition that suspicious handling of a sample should be grounds for tossing a test.
   33. bobm Posted: February 25, 2012 at 11:46 PM (#4068877)
[28]
The protocol allows for temporary storage by the courier, which is FedEx.

The protocol allows for temporary storage by the collector. See the language I quoted in post 20.


IMO there is no way that what allegedly happened in the Braun case is covered (or was intended to be covered) under the language referred to here.

Read a larger portion of the quote from Section XI. (PROCEDURES AFTER COLLECTION / SECURITY AND SHIPMENT OF SPECIMENS) of the JDA, page 39.


XI. PROCEDURES AFTER COLLECTION
SECURITY AND SHIPMENT OF SPECIMENS
A. The urine specimens and chain-of-custody forms are now ready for transport.
B. The Sample Boxes shall be placed in the appropriate packaging.
1. 1 to 6 samples: a Federal Express Labpak will be used.
2. 7 + samples: a brown cardboard box will be used. Be sure to pack any
empty space with newspaper to avoid movement while in transit. ...

E. If the specimen is not immediately prepared for shipment, the Collector shall ensure that it is appropriately safeguarded during temporary storage.
1. The Collector must keep the chain of custody intact.
2. The Collector must store the samples in a cool and secure location.
F. When all of the specimens have been collected at the collection site, the Collector shall take the specimens in the appropriate packaging to a FedEx Customer Service Center for shipment. The specimens cannot be placed in a FedEx Drop Box location. (Emphasis added)


The temporary storage by the collector is provided for "if the specimen is not immediately prepared for shipment." Maybe that window of time is to allow for the collection of samples from multiple players on the same day at the same stadium, prior to boxing it all up for shipment.

IMO subsection [F] negates the idea that "temporary storage" in subsection [E] somehow allows for overnight (or, worse, 36-hour) storage of samples by the collector between the completion of collection of the samples and the delivery by the collector of the samples to FedEx. "When...shall" clearly means that the delivery to FedEx is intended to occur directly and immediately on completion of collection and packaging; I do not think one can even argue that this language permits the collector to leave the stadium collection site without first having packaged the specimens for shipment (and therefore store the specimens temporarily for packaging).


That seems consistent with the other language quoted above from page 37 of the JDA:

7. The Collector shall check the “FedEx” box in the section entitled “Specimen Bottles(s) Released to:” Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected.
   34. birdlives is one crazy ninja Posted: February 26, 2012 at 01:48 AM (#4068904)
IMO subsection [F] negates the idea that "temporary storage" in subsection [E] somehow allows for overnight (or, worse, 36-hour) storage of samples by the collector between the completion of collection of the samples and the delivery by the collector of the samples to FedEx. "When...shall" clearly means that the delivery to FedEx is intended to occur directly and immediately on completion of collection and packaging;

The delivery to FedEx should occur directly and immediately "absent unusual circumstances."

I do not think one can even argue that this language permits the collector to leave the stadium collection site without first having packaged the specimens for shipment (and therefore store the specimens temporarily for packaging).

I don't think language specifies what is suppose to occur under unusual circumstances. Is temporary storage permissible only in cases when the specimen is not immediately prepared for shipment? In any case, the whole temporary storage clause seems like an unnecessary hazard. If the collector can't deliver the samples to FedEx immediately, the language should specify that the samples are no longer viable and new samples should be collected. Once you allow the collector to take the samples home, it creates too much potential trouble regarding the integrity of the sample.
   35. cercopithecus aethiops Posted: February 26, 2012 at 06:00 PM (#4069118)
The game didn't end until 4:44 pm. Braun gave a sample during the game?


Maybe Braun gave a sample before the game.

"The Club Representative, accompanied by the Chaperone, shall notify each player on the test list immediately after the Club Representative’s review of the test list, or
upon the player’s arrival at the ballpark
. The Chaperone will note the time of notification on the test list next to the player’s name. The player must check in at the collection facility within 15 minutes of notification. The player shall be monitored by the Chaperone at all times between the time of notification and the time the player checks in at the collection area."


I had always assumed, since it makes the most sense, that the sample collectors would come to the park at the beginning of the day and notify the club of which players are on the list to be tested that day. If they show up in the middle of the game, that would put the players in the position of having to do exactly the thing that you were incerdulous about -- i.e., give a urine sample during a game.

FWIW, NY Times reported yesterday that the collector left Miller Park with the sample(s) at 5 PM.

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