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Tuesday, February 28, 2012

Wisconsin man who collected Ryan Braun’s urine sample issues statement “to set the record straight”

I followed the same procedure in collecting Mr. Braun’s sample as I did in the hundreds of other samples I collected under the Program. I sealed the bottles containing Mr. Braun’s A and B samples with specially-numbered, tamper-resistant seals, and Mr. Braun signed a form certifying, among other things, that the specimens were capped and sealed in his presence and that the specimen identification numbers on the top of the form matched those on the seals.

I placed the two bottles containing Mr. Braun’s samples in a plastic bag and sealed the bag. I then placed the sealed bag in a standard cardboard Specimen Box which I also sealed with a tamper-resistant, correspondingly-numbered seal placed over the box opening. I then placed Mr. Braun’s Specimen Box, and the Specimen Boxes containing the samples of the two other players, in a Federal Express Clinic Pack. None of the sealed Specimen Boxes identified the players. I completed my collections at Miller Park at approximately 5:00 p.m. Given the lateness of the hour that I completed my collections, there was no FedEx office located within 50 miles of Miller Park that would ship packages that day or Sunday.

On Monday, October 3, I delivered the FedEx Clinic Pack containing Mr. Braun’s Specimen Box to a FedEx office for delivery to the laboratory on Tuesday, October 4. At no point did I tamper in any way with the samples. It is my understanding that the samples were received at the laboratory with all tamper-resistant seals intact.

Fat Al Posted: February 28, 2012 at 04:48 PM | 259 comment(s) Login to Bookmark
  Tags: brewers, steroids

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   101. snapper (history's 42nd greatest monster) Posted: February 29, 2012 at 03:13 PM (#4071082)
#96 I'll go as far as "probably violated the league's drug policy"

I don't see it as cheating to have done so in good faith


Fine. But, I doubt it was unintentional. I'd think these guys and their agents must be pretty aware of the testing regime by now.
   102. Ron J Posted: February 29, 2012 at 03:14 PM (#4071083)
#99 The bits in section XII would seem to make unrefrigerated storage at home unacceptable as well. (Thanks to all who have been digging through the agreement)
   103. SouthSideRyan Posted: February 29, 2012 at 03:33 PM (#4071113)
[102]It's a lot easier to read a legal document like this at work than it is to peruse baseballreference.

I'm not sure I agree that unrefrigerated follows from car storage. The temperature in a car has the potential to be far more extreme(cold or hot) than a basement does, which will normally be slightly below room temperature.

Ultimately, it seems rather strange to me that MLB left so much wiggle room in the process for collection and shipping.
   104. Ray (RDP) Posted: February 29, 2012 at 03:41 PM (#4071121)
#96 I'll go as far as "probably violated the league's drug policy"

I don't see it as cheating to have done so in good faith -- in precisely the same way I don't see J. C. Romero as having cheated. Intent matters when invoking the C word (at least to my mind).

Thing is that "good faith positive" isn't a viable argument for Braun any more than it was for Romero. Or somebody who tests positive for some powerful cold medicine (not performance enhancing -- indeed probably a performance inhibitor)

This of course assumes that he was doing something that he could (should) have gotten a TUE for. Obviously not a given, but ... plausible given the available information.


Ron, what evidence is there that his test result was a "good faith positive"? It's plausible, sure. But that doesn't really provide a strong argument for Braun's supporters. It doesn't allow him to stay in the same category as Bagwell and Piazza.
   105. Ray (RDP) Posted: February 29, 2012 at 03:48 PM (#4071128)
To follow up:

If Braun were claiming "good faith positive," I'd be happy to listen. But as far as I know, he's not even claiming THAT. He's provided zero information which would allow us to give special consideration to this theory.

Contrast that with Clemens, who -- no matter if one thinks he's guilty -- did absolutely everything in his power to contest on a factual basis every piece of evidence he could (such as whether he was at the party).

I feel kind of like a fish out of water here, as usually I find myself defending accused users. But a positive test really does tip the scales. I didn't make excuses for Palmeiro; I concluded him probably guilty, while acknowledging that it was plausible he tested positive unknowingly. I see no reason to make the same kinds of excuses for Braun that have been accepted for nobody else.
   106. Edmundo got dem ol' Kozma blues again mama Posted: February 29, 2012 at 03:50 PM (#4071129)
than a basement does, which will normally be slightly below room temperature.



Duh, like we all haven't lived that aleady.
   107. Ron J Posted: February 29, 2012 at 03:54 PM (#4071134)
#104 As I said, it's plausible that it was a screwup. That he was using something that he could have gotten a TUE for and didn't.

As for Snapper's argument, I don't find it remotely improbable that somebody didn't consider the possibility that a treatment could violate the league's drug policy. If you get enough narrowly focused specialists involved then ... well it's easy to get into a situation where nobody is looking at the whole picture and everybody involved is assuming that somebody else is looking into that particular issue.
   108. Ray (RDP) Posted: February 29, 2012 at 04:00 PM (#4071138)
As for Snapper's argument, I don't find it remotely improbable that somebody didn't consider the possibility that a treatment could violate the league's drug policy.


Yes, I agree with this.
   109. snapper (history's 42nd greatest monster) Posted: February 29, 2012 at 04:02 PM (#4071142)
If you get enough narrowly focused specialists involved then ... well it's easy to get into a situation where nobody is looking at the whole picture and everybody involved is assuming that somebody else is looking into that particular issue.

Are the physicians of MLB players really unaware of the steroid issues baseball has had? Do these physicians live under rocks?
   110. Ron J Posted: February 29, 2012 at 04:03 PM (#4071144)
#105 What's the point in making that argument though? Romero's case pretty clearly demonstrates that it's a waste of time.

The only person I'm aware of win that way is Greg Rusedski, and he was able to demonstrate that his positive test was likely a result of contaminated supplements and that the tainted supplements were supplied by the sanctioning agency. Even then, he had to go to the courts and it's a tough way to win.

Somebody was informally trying to make the argument by leaked info (the herpes treatment), and everything presented by those leaks was as I say plausible. He's got astonishingly little to gain by trying to formally make those arguments though.
   111. Ron J Posted: February 29, 2012 at 04:05 PM (#4071146)
#109 Ever dealt with multiple specialists? My mother died of poor communication among multiple specialists.
   112. snapper (history's 42nd greatest monster) Posted: February 29, 2012 at 04:08 PM (#4071149)
#109 Ever dealt with multiple specialists? My mother died of poor communication among multiple specialists.

Sure. I'm just thinking that a Dr. dealing with Ryan Braun would be aware of the MLB steroid policy. His internist certainly should be.\

Also, I don't think the alleged Herpes is something that requires some super-specialist to treat. Those adds are all over late night TV.
   113. Graham & the 15-win "ARod Vortex of suck" Posted: February 29, 2012 at 04:14 PM (#4071158)
#107

Excuse my ignorance, but TUE is?

T____ U_____ Exemption presumably, but I can't put together the first two words.
   114. snapper (history's 42nd greatest monster) Posted: February 29, 2012 at 04:22 PM (#4071164)
T____ U_____ Exemption presumably, but I can't put together the first two words.

Therapeutic use?
   115. LionoftheSenate (Brewers v A's World Series) Posted: February 29, 2012 at 04:25 PM (#4071168)
Therapeutic Use
   116. LionoftheSenate (Brewers v A's World Series) Posted: February 29, 2012 at 04:25 PM (#4071169)
Do I have to give a Coke to snapper? He used a "?"?
   117. LionoftheSenate (Brewers v A's World Series) Posted: February 29, 2012 at 04:26 PM (#4071170)
Okay, Coke to snapper. If you were SBB, I'd give you the finger.
   118. The Id of SugarBear Blanks Posted: February 29, 2012 at 04:39 PM (#4071182)
NYT, December 11, 2011:

Major League Baseball’s drug policy states that a player cannot simply deny that he intentionally used a prohibited substance, but that he “must provide objective evidence in support of his denial.”

To that end, Braun’s defense team is in the midst of systematically gathering evidence of everything he ingested in the days leading up to his test before the playoffs began. The team is cataloging the contents of his locker and his medicine cabinet at home, anything provided by his trainers and so on. The substances will be tested by labs approved by the World Anti-Doping Agency.

“Because Ryan doesn’t know what caused the positive result, we’re still doing our analysis,” said a person with knowledge of the tests and appeal. The positive test did not show he ingested any steroid or performance-enhancing drug, that person added.


They tried. Didn't work.
   119. Bug Selig Posted: February 29, 2012 at 04:50 PM (#4071202)
What is the purpose of "Wisconsin man" in the headline? I assumed it was some back-ass country paper in Eau Claire until I happened to scroll over the link.
   120. valuearbitrageur Posted: February 29, 2012 at 05:11 PM (#4071248)
They tried. Didn't work.


If they had provided proof that he ingested it unknowingly through a tainted supplement or some other source, he's still guilty under the policy.

If he was innocent, his reps would still try to establish if that was true, just for repetitional reasons.

And if he was innocent, his reps could easily fail to find the cause of the test.

So what you've established here is that he acted just like a guilty or innocent person would in his situation.
   121. The Id of SugarBear Blanks Posted: February 29, 2012 at 05:16 PM (#4071261)
It's one of those things that's become something akin to conventional wisdom, and Braun alluded to it in his press conference (*), but it isn't the case that a positive PED test results in "strict liability" or that policy mandates that the player is "responsible for what he puts in his body." (And, accordingly, the window open to Braun or any other player on appeal, is much more expansive than the "strict liablility" meme would have it.)

As the NYT story I cited notes, the drug testing addendum to the CBA, in the "Appeals" section, states that:

"Notwithstanding Section 3.E above, a Player is not in violation of the Program if the presence of a Prohibited Substance in his urine was not due to his fault or negligence."

A positive drug test merely generates a rebuttable presumption of a violation:

"In any case involving an alleged violation of Section 3.E.1, the Commissioner’s Office shall carry its initial burden of establishing the violation by establishing that a Player’s test result was “positive” (as that term is defined therein) and was obtained pursuant to a valid test conducted under the Program. The Commissioner’s Office is not required to otherwise establish intent, fault, negligence or knowing use of a Prohibited Substance on the Player’s part to establish such a violation. If the Commissioner’s Office meets its initial burden, the Player then has the burden of establishing that his test result was not due to his fault or negligence. A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the “positive” test result."

"I'm taking an STD medication, here's my prescription, I didn't know it contained Prohibited Substance X, that's why my test was positive" would in fact be grounds for a successful appeal (other than in the very unlikely circumstance that the player somehow knew it contained a prohibited substance).

(*) E.g. in the meme, "The players are 100% responsible for what they take, so MLB has to be 100% perfect in its procedures."
   122. The Id of SugarBear Blanks Posted: February 29, 2012 at 05:17 PM (#4071262)
If they had provided proof that he ingested it unknowingly through a tainted supplement or some other source, he's still guilty under the policy.

No, he isn't.
   123. valuearbitrageur Posted: February 29, 2012 at 05:23 PM (#4071279)
Dunno, do you always do everything at work 100% as fast as you possibly can all the time? Give me a break.


There is a huge difference between doing something 100% as fast as possible, and 2% as fast as possible. If he could have dropped the samples within an hour instead of 44 hours later, that's the actual difference.

Therefore, the earliest that the specimens could be shipped was Monday, October 3. In that circumstance, CDT has instructed collectors since I began in 2005 that they should safeguard the samples in their homes until FedEx is able to immediately ship the sample to the laboratory, rather than having the samples sit for one day or more at a local FedEx office. The protocol has been in place since 2005 when I started with CDT and there have been other occasions when I have had to store samples in my home for at least one day, all without incident


If that's CDT's protocol, then his holding the sample for another 6 hours on monday is no longer suspicious and we have little reason to suspect the collector of anything nefarious.

But the real villains here are the MLB and the Union for agreeing to this awful protocol. I'm shocked that CDT would even have something this loose as a common protocol, certainly anonymity is almost always a requirement of the test so why would you allow your collectors to hold samples for days creating the potential for tampering/bribing/etc while the samples are still identifiable?

It's scary that tests in general are handled this sloppily., but it's inexcusable that the MLB/Union allowed their tests to be handled this way. The MLB testing protocol should simply throw out any test that hasn't been delivered to a secure courier such as FedEx on the same day. Anonymizing the samples should be one of the #1 requirements, and it's not as if they can't afford to pay extra to ensure this. The MLB could afford to pay couriers to fly the samples to Canada same day, ensuring that they became anonymous as soon as the collector handed them to the couriers. If they had done this in the first place, Braun is either caught red-handed, or he passes because his sample didn't degrade/get tampered with.
   124. valuearbitrageur Posted: February 29, 2012 at 05:29 PM (#4071290)
"In any case involving an alleged violation of Section 3.E.1, the Commissioner’s Office shall carry its initial burden of establishing the violation by establishing that a Player’s test result was “positive” (as that term is defined therein) and was obtained pursuant to a valid test conducted under the Program. The Commissioner’s Office is not required to otherwise establish intent, fault, negligence or knowing use of a Prohibited Substance on the Player’s part to establish such a violation. If the Commissioner’s Office meets its initial burden, the Player then has the burden of establishing that his test result was not due to his fault or negligence. A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the Player must provide objective evidence in support of his denial. Among other things, such objective evidence may question the accuracy or reliability of the “positive” test result."


Sorry SBB, I'm reading it the opposite of you. It clearly seems to state that a player is negligent when ingesting a banned substance, even if he didn't intend to.

And either way, again Braun's teams behavior is neither indicative of guilt or innocence. Of course they are going to try to figure out a way to show his test was invalid in both scenarios.
   125. The Id of SugarBear Blanks Posted: February 29, 2012 at 05:34 PM (#4071306)
If you can show the presence of the prohibited substance wasn't due to your fault or negligence, you're off the hook. You can't just say, "I didn't take anything, the test is wrong" -- that's not enough -- but if you say, "The doctor prescribed me medication for my STD, I had the STD, I took what the doctor told me to take, it contained the substance I tested positive for," and all that's true, you're off the hook. (The way you typically show something wasn't the result of your fault or negligence is to show that it was an accident. Players can't be suspended for accidents, though they do have the burden of showing it was an accident).

It isn't "strict liability," and it isn't a policy where the player's "responsible for everything he puts in his body."
   126. Ron J Posted: February 29, 2012 at 05:53 PM (#4071337)
Are the physicians of MLB players really unaware of the steroid issues baseball has had?


Their personal physicians? No. The specialists, probably not, though never underestimate how tunnel-minded some specialists are.

But it seems plausible to me that the specialist would assume the personal physician would:
a) be aware of the implications of a proposed treatment (not a given though)
b) would handle any job related issues

While at the same time the personal physician would assume that the specialist would either inform him of any potential job related issues or would handle them himself.

I've seen things happen on more or less those lines.
   127.   Posted: February 29, 2012 at 06:01 PM (#4071346)
There is a huge difference between doing something 100% as fast as possible, and 2% as fast as possible. If he could have dropped the samples within an hour instead of 44 hours later, that's the actual difference.


That would have been against policy.

It seems to me that not only did he follow procedure, but if anything he should be applauded for his strict diligence and adherence to company policy. It would have been easy for him to just dump the sample at a FedEx depot as quick as possible, but he was cognizant of the procedure and respectful of the regulations stating that the sample is only to be dropped off when it is immediately ready to be shipped. He waited until FedEx could provide immediate shipment and delivered it then. Good for him; I can't claim to be that knowledgeable about some of my companies policies and procedures.
   128. Fancy Pants Handles lap changes with class Posted: March 01, 2012 at 02:23 AM (#4071677)
If you can show the presence of the prohibited substance wasn't due to your fault or negligence, you're off the hook. You can't just say, "I didn't take anything, the test is wrong" -- that's not enough -- but if you say, "The doctor prescribed me medication for my STD, I had the STD, I took what the doctor told me to take, it contained the substance I tested positive for," and all that's true, you're off the hook. (The way you typically show something wasn't the result of your fault or negligence is to show that it was an accident. Players can't be suspended for accidents, though they do have the burden of showing it was an accident).

It isn't "strict liability," and it isn't a policy where the player's "responsible for everything he puts in his body."


It isn't enough to get a prescription. In order to get a TUE, MLB's treatment board has to specifically approve it as medically appropriate. And MLB's Joint Drug Agreement specifically states, that without such an approval, a player may not challenge a ruling under the "no fault or negligence" provision. Failing to notify MLB when you are taking a banned substance, is in fact negligent on behalf of the player.
   129. spike Posted: March 01, 2012 at 05:58 AM (#4071717)
There's a big difference between opining with eyes open, and accusing.


Innuendo is fine if you don't want to actually have to stand behind what you say about someone. Nice.
   130. Foghorn Leghorn Posted: March 01, 2012 at 11:33 AM (#4071758)
Okay, Coke to snapper. If you were SBB, I'd give you the finger.
No Coke. the rules of online Cokeage is "not answering a factual question".
   131. David Nieporent (now, with children) Posted: March 01, 2012 at 11:36 AM (#4071763)
Lion @52:
From the NY Times article, detailing the process and the collector. In bold is an obvious point where the sample is most vulnerable. It would be child's play to taint the sample when the collector handles the sample, urine, cups and even snaps the lid on. Axiron is perfect if this was how you were going to taint sample.
Okay, but what does that have to do with the shipping issue?

JE @54:
You and Braun might be playing conspiracy theory with the wrong person. According to the JS article, Laurenzi has a stellar reputation in the community.
Yes, and after the serial killer is caught, his neighbors always thought he was the nicest guy. I don't have any basis for believing the guy engaged in deliberate wrongdoing, but it's really grasping at straws to say that random people like him, so we should discount the possibility.

Bruce @60:
Braun offered no specific evidence of tampering against Laurenzi, instead making a general and rather vague accusation. Laurenzi responded with a specific, detailed and well-written explanation of what happened during the process. As public statements go, Laurenzi's was far better articulated than Braun's.
So Laurenzi has a better press agent (paid for, one assumes, by his employer). What does that have to do with whether he's telling the truth?

Snapper @96:
Braun probably cheated, and is making tens of millions of dollars in exchange for accepting public scrutiny. Laurenzi is a poor working guy who followed his company's rules, yet is being accused of tampering left and right.
In approximately 6 ½ minutes, nobody will remember whatshisname's name. Ryan Braun will endure public scrutiny forever. Braun is indeed well compensated, much better than whatshisname, but so what?


SouthsideRyan @99:
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.

Emphasis mine. No language about bringing the sample to FedEx, only that it should be sent out by FedEx the same day.
That is possibly the most disingenuous misreading of a contract I've seen in my years as an attorney. Of course that's language about bringing the sample to FedEx. I suppose it might have been a tiny bit clearer if it had said "via" FedEx, not "by" FedEx, but in context it's 100% clear. FedEx is not a party to the contract, so obviously that statement is not a directive as to what FedEx should do. It's a directive as to what the collector is supposed to do: take the sample to FedEx the same day. When someone says, "Send that by FedEx today," everyone on the planet understands that to mean, "Take it to FedEx today."

Note that it is not a statement about when the shipment should be received, because FedEx doesn't deliver on Sundays, so it could be next day or could be two days. Thus, the clear point is to get it out of the collector's hands, not to get it to the lab immediately for testing. Thus, the whole "shipping deadline" is a complete red herring.
   132. snapper (history's 42nd greatest monster) Posted: March 01, 2012 at 11:43 AM (#4071767)
Snapper @96:

Braun probably cheated, and is making tens of millions of dollars in exchange for accepting public scrutiny. Laurenzi is a poor working guy who followed his company's rules, yet is being accused of tampering left and right.


In approximately 6 ½ minutes, nobody will remember whatshisname's name. Ryan Braun will endure public scrutiny forever. Braun is indeed well compensated, much better than whatshisname, but so what?

So, why are people sympathetic with Braun, but out to crucify Laurenzi?

Laurenzi did everything right. Braun most likely did something wrong.
   133. David Nieporent (now, with children) Posted: March 01, 2012 at 11:44 AM (#4071769)
"I'm taking an STD medication, here's my prescription, I didn't know it contained Prohibited Substance X, that's why my test was positive" would in fact be grounds for a successful appeal (other than in the very unlikely circumstance that the player somehow knew it contained a prohibited substance).
No. The standard, as you yourself quoted, is not "knowledge." "I didn't know" is not sufficient to refute negligence; indeed, it defines negligence.

Here's what would be sufficient: "Before I took X, we researched whether it contained a prohibited substance (or would otherwise cause a positive result). The literature said it would not. Based on that, I took X. However, the pharmaceutical company's manufacturing process was screwed up, and X was adulterated at the factory."
   134. JPWF1313 Posted: March 01, 2012 at 11:50 AM (#4071773)
SouthsideRyan @99:
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.

Emphasis mine. No language about bringing the sample to FedEx, only that it should be sent out by FedEx the same day.
That is possibly the most disingenuous misreading of a contract I've seen in my years as an attorney. Of course that's language about bringing the sample to FedEx. I suppose it might have been a tiny bit clearer if it had said "via" FedEx, not "by" FedEx, but in context it's 100% clear. FedEx is not a party to the contract, so obviously that statement is not a directive as to what FedEx should do. It's a directive as to what the collector is supposed to do: take the sample to FedEx the same day. When someone says, "Send that by FedEx today," everyone on the planet understands that to mean, "Take it to FedEx today."


It's is not well written, but I agree that the intent was absolutely to state that the sample should be brought top FedEx the day it was taken.

If the intent was to hold onto the sample if FedEx was not shipping that day, it would have contained some guidance/instructions for storage.
   135. David Nieporent (now, with children) Posted: March 01, 2012 at 11:53 AM (#4071778)
It seems to me that not only did he follow procedure, but if anything he should be applauded for his strict diligence and adherence to company policy. It would have been easy for him to just dump the sample at a FedEx depot as quick as possible, but he was cognizant of the procedure and respectful of the regulations stating that the sample is only to be dropped off when it is immediately ready to be shipped. He waited until FedEx could provide immediate shipment and delivered it then. Good for him; I can't claim to be that knowledgeable about some of my companies policies and procedures.
The problem is that he is required to adhere to the procedures negotiated between MLB and the MLBPA, not "company policy." You'll note that the "Procedures After Collection" portion of the Joint Drug Program is quite specific; it does not say, "Follow standard CDT policy," or something of that nature. It details exactly what the collector must do.
   136. JPWF1313 Posted: March 01, 2012 at 11:54 AM (#4071781)
"I'm taking an STD medication, here's my prescription, I didn't know it contained Prohibited Substance X, that's why my test was positive" would in fact be grounds for a successful appeal (other than in the very unlikely circumstance that the player somehow knew it contained a prohibited substance).


No it wouldn't, because then the player would almost certainly be found negligent.
   137. Ray (RDP) Posted: March 01, 2012 at 12:02 PM (#4071795)
The problem is that he is required to adhere to the procedures negotiated between MLB and the MLBPA, not "company policy." You'll note that the "Procedures After Collection" portion of the Joint Drug Program is quite specific; it does not say, "Follow standard CDT policy," or something of that nature. It details exactly what the collector must do.


Yes, but I can kind of see how he thought it reasonable in the case of a conflict to follow company procedure. Maybe it wasn't the right thing for him to do, but it doesn't suggest a sinister motive to me.
   138. The Id of SugarBear Blanks Posted: March 01, 2012 at 12:02 PM (#4071797)
No. The standard, as you yourself quoted, is not "knowledge." "I didn't know" is not sufficient to refute negligence; indeed, it defines negligence.

Here's what would be sufficient: "Before I took X, we researched whether it contained a prohibited substance (or would otherwise cause a positive result). The literature said it would not. Based on that, I took X. However, the pharmaceutical company's manufacturing process was screwed up, and X was adulterated at the factory."


I don't see how it would be negligence for a layman who simply takes what his doctor prescribes for him. You can't hold a layman accountable for ingredients in medicine a doctor prescribes for a condition entirely unrelated to athletics or athletic training. (And its the latter clause that distingishes the STD medication hypothetical from, say, the JC Romero situation. Yeah, you go down to GNC and pick up a big jug of "Muscle Build," you're negligent if something in there causes a positive test.)

The clsuse in the drug testing addendum has to mean something.
   139. JPWF1313 Posted: March 01, 2012 at 12:04 PM (#4071802)
Are the physicians of MLB players really unaware of the steroid issues baseball has had?

Their personal physicians? No. The specialists, probably not, though never underestimate how tunnel-minded some specialists are.


Drug interaction problems are very prevalent whenever a patient sees several specialists simultaneously, it's incredible how many don't know or don't care about what may have been prescribed by another doctor- oh they'll ask if the patient has seen the same type of doctor/ has he been prescribed something for the SAME condition - they may even glance at the medical records relating to the condition being treated, but your neurologist likely couldn't care less what your proctologist's records say- they might ask if you are "taking anything" - but relying in a patient to both determine if something is worth reporting and then accurately convey information (in manner useful to a doctor) is another thing.

Outside the hospital you may want to always use the same pharmacy- educated pharmacists may actually be quite a bit more knowledgeable and aware about possible drug interaction issues than doctors.
   140. Fancy Pants Handles lap changes with class Posted: March 01, 2012 at 12:05 PM (#4071804)
The problem is that he is required to adhere to the procedures negotiated between MLB and the MLBPA, not "company policy."

No he's not. He's required to do his job, as instructed - which as far as anyone here knows, he dd to the letter. If MLB screws not specifically asking for different procedures, or his boss screws up passing those special requirements on to the collector, it shouldn't be his problem.
   141. JPWF1313 Posted: March 01, 2012 at 12:06 PM (#4071806)
I don't see how it would be negligence for a layman who simply takes what his doctor prescribes for him. You can't hold a layman accountable for ingredients in medicine a doctor prescribes for a condition entirely unrelated to athletics or athletic training.


Because that's essentially the same thing as saying "I didn't know" and that's not good enough in the rules.
   142. Fancy Pants Handles lap changes with class Posted: March 01, 2012 at 12:08 PM (#4071809)
The clsuse in the drug testing addendum has to mean something.

It does. It means if the player can show that he tested positive due to a tainted or spiked substance, which normally should not have caused a positive test, he is off the hook.
   143. The Id of SugarBear Blanks Posted: March 01, 2012 at 12:12 PM (#4071815)
Because that's essentially the same thing as saying "I didn't know" and that's not good enough in the rules.

Sure it is. If you take a substance that's completely unrelated to sports for a condition unrelated to sports, at the behest of a competent doctor, and it happens to have a prohibited substance in it, you weren't at fault or negligent. (Unless your doctor said it did and you took it anyway. You could probably get a TUE for it in that situation, but that's a different fact pattern.)

It does. It means if the player can show that he tested positive due to a tainted or spiked substance, which normally should not have caused a positive test, he is off the hook.

It means that, but also more than that.
   144. Fancy Pants Handles lap changes with class Posted: March 01, 2012 at 12:21 PM (#4071828)
You could probably get a TUE for it in that situation, but that's a different fact pattern.)

You could have, but didn't. That's the negligence part.

It means that, but also more than that.

No.
   145. David Nieporent (now, with children) Posted: March 01, 2012 at 12:26 PM (#4071837)
I don't see how it would be negligence for a layman who simply takes what his doctor prescribes for him. You can't hold a layman accountable for ingredients in medicine a doctor prescribes for a condition entirely unrelated to athletics or athletic training. (And its the latter clause that distingishes the STD medication hypothetical from, say, the JC Romero situation. Yeah, you go down to GNC and pick up a big jug of "Muscle Build," you're negligent if something in there causes a positive test.)
"Simply taking what the doctor prescribes for him" as a defense would vitiate the whole TUE process. The existence of such a process -- which is intended to apply to medicine, not GNC pills -- necessarily means that MLB can hold a layman athlete accountable for ingredients in a medicine a doctor prescribes for him.
The clsuse in the drug testing addendum has to mean something.
It does. I gave an example of what it meant.
   146. The Id of SugarBear Blanks Posted: March 01, 2012 at 12:28 PM (#4071840)
You could have, but didn't. That's the negligence part.

But you had no reason to, since you had no idea the medication contained a prohibited substance. You get a TUE when you do know; e.g., when your doctor tells you.

These are athletes; they can't be expected to know everything in a prescription medication.
   147. The Id of SugarBear Blanks Posted: March 01, 2012 at 12:34 PM (#4071847)
"Simply taking what the doctor prescribes for him" as a defense would vitiate the whole TUE process. The existence of such a process -- which is intended to apply to medicine, not GNC pills -- necessarily means that MLB can hold a layman athlete accountable for ingredients in a medicine a doctor prescribes for him.

TUEs kick in when the player knows what's in the medication. That's the distinction.

Under your model, an MLB player would have to run every single substance he takes, whether or not it's related to sports, by someone to see if it might contain a prohibited substance.(*) That's an invasion of medical privacy; but that aside, the CBA is not properly read to mean such a thing.

(*) If you consider a situation where Braun goes to a doctor who doesn't know a thing about sports or athletes' use of PEDs, you'll see what I mean. A player is not held accountable for a doctor not speaking up and warning him about ingredients in medication.
   148. David Nieporent (now, with children) Posted: March 01, 2012 at 12:37 PM (#4071853)
No he's not. He's required to do his job, as instructed - which as far as anyone here knows, he dd to the letter. If MLB screws not specifically asking for different procedures, or his boss screws up passing those special requirements on to the collector, it shouldn't be his problem.
Look, is it technically true that if CDT told him, "Follow these procedures, regardless of what our customer's policies and procedures are," then he should do so, yes. However, given that CDT is a private, for-profit company, we can reasonably assume that CDT does not actually want to lose customers. Given further that CDT touts on its website how it can work with customers to tailor its programs to customer needs, we can reasonably assume that CDT realizes that it must adhere to its customers' wishes, rather than to ignore them. Given that, we can further reasonably assume that CDT tells its employees to follow the procedures that have been arranged for each customer. Given that, we can assume that, in fact, he did not do his job as instructed.
   149. David Nieporent (now, with children) Posted: March 01, 2012 at 12:40 PM (#4071859)
TUEs kick in when the player knows what's in the medication. That's the distinction.
No. Failing to secure a TUE in that instance would be a knowing violation, not negligence.
Under your model, an MLB player would have to run every single substance he takes, whether or not it's related to sports, by someone to see if it might contain a prohibited substance.(*) That's an invasion of medical privacy; but that aside, the CBA is not properly read to mean such a thing.
That's exactly what it is read to mean. MLB players do have to run every substance they take, whether or not its related to sports, by someone to see if it might contain a prohibited substance. Failing to do so is what negligence consists of.

Your interpretation reads negligence out of the standard altogether.
   150. SouthSideRyan Posted: March 01, 2012 at 12:42 PM (#4071861)
It's is not well written, but I agree that the intent was absolutely to state that the sample should be brought top FedEx the day it was taken.

If the intent was to hold onto the sample if FedEx was not shipping that day, it would have contained some guidance/instructions for storage.


It did. From post #23:

XI. 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.
   151. JJ1986 Posted: March 01, 2012 at 12:45 PM (#4071864)
I don't think the collector's basement is secure.
   152. David Nieporent (now, with children) Posted: March 01, 2012 at 12:50 PM (#4071870)
I don't think the collector's basement is secure.
How about his mother's?

It is odd how vague that standard is, though, given the specificity of other parts of the protocol (*). I think that can best be explained by noting that this is only supposed to come into play in "unusual circumstances," since at all other times it is supposed to be FedExed the same day. And since (a) almost any ballpark is near a major airport, and (b) FedEx has 24-hour locations at most major airports, it would be unusual indeed if the collector couldn't ship it via FedEx that day. If there's a hurricane that shuts down the roads or airport, I guess the best he can do is keep chain of custody intact and store it in his basement.



EDIT: (*) e.g., it tells him how hard to press down on the FedEx shipping slip. One would think that would be ordinary common sense.
   153. Ray (RDP) Posted: March 01, 2012 at 12:56 PM (#4071874)
I'm still not seeing a reasonable argument that the collector may have screwed with the samples.

I mean, in some sense that's not fair to Braun, because part of the reason the rules are in place is because it can be so difficult to show tampering and so the rules provide an indication of whether the collector went off course. Which is a flag of sorts. And then we can ask about the collector's motives and investigate to see what we can uncover (which can admittedly be very difficult).

But here, it seems there are some fairly innocent reasons for why the collector went off course, and then when I consider what the collector would have had to do to actively spike the samples and why... I'm left concluding that, well, anything's possible, but it's damned unlikely that the collector screwed with this.

Isn't it much more likely that Braun took a banned substance than the collector spiked his samples?

I'm open to hearing why I'm wrong, i.e., why I should think it's more than "extremely unlikely" that the collector was up to no good.
   154. The Id of SugarBear Blanks Posted: March 01, 2012 at 01:02 PM (#4071880)
That's exactly what it is read to mean. MLB players do have to run every substance they take, whether or not its related to sports, by someone to see if it might contain a prohibited substance. Failing to do so is what negligence consists of.

Your interpretation reads negligence out of the standard altogether.


No, because there's still JC Romero-esque "should have known" negligence, where you ingest a big batch of "Muscle Build" from GNC.

The CBA drug testing addendum covers this. You can get a TUE and ingest a prohibited substance. If you try to get a TUE and it isn't granted, you can't raise a "no fault or negligence" defense based on the fact that you should have qualified, or would qualify if you applied again. You explicitly are allowed to raise medical treatment as part of a "no fault or negligence" claim -- which is what would happen in the Braun/STD hypo. You go to the doctor, the doctor doesn't know anything about sports, you're getting treated for something that has nothing to do with sports, the medication for the non-sports injury/condition happens to have a prohibited substance.

Here's the provision:

"A Player authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption (“TUE”) ... A Player who is determined not to qualify for a TUE may not challenge a determination that he violated the Program by contending, in connection with a “no fault or negligence” defense or otherwise, that he believed he would qualify or had qualified for a TUE; however, a Player is not otherwise precluded from introducing evidence of medical treatment in support of such a challenge."

As I read that, challenges are only precluded for players who tried to get a TUE but didn't, not those who were never made aware that they might be ingesting a prohibited substance. In that case -- the Braun STD hypo -- the player is expicitly permitted to raise medical treatment as part of a "no fault or negligence" defense.
   155. The Id of SugarBear Blanks Posted: March 01, 2012 at 01:07 PM (#4071884)
But here, it seems there are some fairly innocent reasons for why the collector went off course, and then when I consider what the collector would have had to do to actively spike the samples and why... I'm left concluding that, well, anything's possible, but it's damned unlikely that the collector screwed with this.

There's also, at least according to the NYT, a union rep present in Montreal who has the opportunity to review the FedEx'd package before the lab tests it.
   156. Ron J Posted: March 01, 2012 at 01:09 PM (#4071886)
To add to 144's blunt "No", see J. C. Romero. Incidentally I don't recall a thread on it here, but Romero has settled his lawsuit.

In the article here it mentions that Romero was able to demonstrate that the supplement he was taking was in fact tainted and was not labeled as containing androstenedione (which is what he tested positive for) and that wasn't enough for him to prevail in arbitration.
   157. The Id of SugarBear Blanks Posted: March 01, 2012 at 01:13 PM (#4071893)
To add to 144's blunt "No", see J. C. Romero. Incidentally I don't recall a thread on it here, but Romero has settled his lawsuit.

In the article here it mentions that Romero was able to demonstrate that the supplement he was taking was in fact tainted and was not labeled as containing androstenedione (which is what he tested positive for) and that wasn't enough for him to prevail in arbitration.


That's confusing, though, because Fancy Pants also averred that a tainted sample would be the core type of thing that would give you a valid "no fault or negligence" defense -- which is obviously right. So either there's more to the Romero case than has been in the papers (*), or we have to ask why Das rejected Romero's appeal, but affirmed Braun's.

(*) E.g., do we actually *know* that he proved a tainted substance at arbitration? I haven't read your link completely yet.
   158. The Id of SugarBear Blanks Posted: March 01, 2012 at 01:28 PM (#4071908)
From Ron J.'s link:

Romero demanded an arbitration hearing and subsequently the Players Association sent the product that Romero had been using -- 6-OXO Extreme -- to a Tennessee lab to be tested. The lab's results confirmed that the supplement was tainted.

What does "tainted" mean there -- that's the key. If Romero's case was:

(1) I bought the product;
(2) I compared the ingredients with the prohibited substance list and none of them were on there;
(3) I had it tested at the lab and there's a prohibited substance in it; and
(4) The prohibited substance isn't on the ingredient list

... then he obviously should have won.
   159. David Nieporent (now, with children) Posted: March 01, 2012 at 01:37 PM (#4071915)
The CBA drug testing addendum covers this. You can get a TUE and ingest a prohibited substance. If you try to get a TUE and it isn't granted, you can't raise a "no fault or negligence" defense based on the fact that you should have qualified, or would qualify if you applied again. You explicitly are allowed to raise medical treatment as part of a "no fault or negligence" claim -- which is what would happen in the Braun/STD hypo. You go to the doctor, the doctor doesn't know anything about sports, you're getting treated for something that has nothing to do with sports, the medication for the non-sports injury/condition happens to have a prohibited substance.
You're being you again. This has nothing to do with "sports." The doctor need not know "anything about sports." The issue is pharmaceuticals, not "sports." There is nothing about "sports" in the drug program. It's about chemical substances.

"I didn't ask my doctor" is negligence.

No, because there's still JC Romero-esque "should have known" negligence, where you ingest a big batch of "Muscle Build" from GNC.
"Should have known" is not "JC Romero" negligence; it's all negligence. That's what negligence is.
   160. David Nieporent (now, with children) Posted: March 01, 2012 at 01:51 PM (#4071934)
That's confusing, though, because Fancy Pants also averred that a tainted sample would be the core type of thing that would give you a valid "no fault or negligence" defense -- which is obviously right. So either there's more to the Romero case than has been in the papers (*), or we have to ask why Das rejected Romero's appeal, but affirmed Braun's.
The difference is that the quality control of GNC products is not the same as the quality control of Astrazeneca. It's actually well-known that the OTC supplements were commonly tainted (*), whereas nobody has reason to believe that a prescription medication is.


(*) EDIT: Hell, the manufacturers of the product he took were owned by Patrick Arnold.
   161. GotowarMissAgnes Posted: March 01, 2012 at 02:25 PM (#4071970)
No reason to question prescription medications?

http://www.fda.gov/Drugs/ResourcesForYou/Consumers/BuyingUsingMedicineSafely/CounterfeitMedicine/default.htm
   162. Greg Pope thinks the Cubs are reeking havoc Posted: March 01, 2012 at 03:00 PM (#4071997)
"I didn't ask my doctor" is negligence.

Not to be pedantic here, but it may be that people are confusing negligence with not knowing. I probably do so, often. I could look it up in a dictionary, but what is the legal definition of negligence?
   163. Lassus Posted: March 01, 2012 at 03:09 PM (#4072013)
"Should have known" is not "JC Romero" negligence; it's all negligence. That's what negligence is.

Take it to the Wilpon thread.
   164. David Nieporent (now, with children) Posted: March 01, 2012 at 03:11 PM (#4072017)
Not to be pedantic here, but it may be that people are confusing negligence with not knowing. I probably do so, often. I could look it up in a dictionary, but what is the legal definition of negligence?
It's generally defined as something like failure to exercise reasonable care. To oversimplify, you have a hierarchy something like this:

Knowing/intentional
Reckless
Negligent
Careless

(To make it even more confusing, criminal negligence is more akin to civil recklessness than it is to mere civil negligence.) In this context, you can think of it as "should have known." Did Romero know the supplement he had taken was contaminated? Let's say, "No." Should he have? Well, would a reasonable baseball player have grabbed a jar of 6-OXO Extreme off the shelf at GNC and taken it without making any effort to find out whether it would trigger a positive result? Probably not. In the medical context, would a reasonable baseball player ask his doctor, "Hey, what's in this? Will it trigger a positive result?" Yes. Would a reasonable baseball player who had asked his doctor and gotten medical assurance that the substance was safe take any further steps? Probably not. You ought to be able to rely on your doctor's expertise.
   165. Downtown Bookie Posted: March 01, 2012 at 03:24 PM (#4072026)
Welcome back David.

Where the hell were you? (I mean, not like it's any of my business, but, well, where were you?)

DB
   166. Greg Pope thinks the Cubs are reeking havoc Posted: March 01, 2012 at 03:30 PM (#4072032)
Thank you, David. I do think that the statements here have somewhat equated negligence with not knowing.
   167. Ray (RDP) Posted: March 01, 2012 at 03:36 PM (#4072038)
To oversimplify,


While you were out we found a new catch phrase: "To vastly oversimplify" (followed by "yes" or "no").
   168. The Id of SugarBear Blanks Posted: March 01, 2012 at 03:42 PM (#4072043)
With Romero, though, doesn't "tainted" mean "it had something in it he didn't know about, and couldn't have known about"?(*) The problem with all this is that we have to rely on press stories (since MLB arbitration decisions aren't published and maybe not even written), and they don't use language and terminology as precisely as it needs to be used. The story Ron J. linked used the word "tainted," but that word could mean several things.

(*) I.e., looked closely at the ingredient list, looked closely at the MLB prohibited substance list, and didn't see the prohibited substance on the ingrediant list because it wasn't there. Or is the suggestion that a player is responsible for whatever happens if he buys a GNC product -- that a prohibited substance getting into your piss-stream is, definitionally, the result of negligence?

In the medical context, would a reasonable baseball player ask his doctor, "Hey, what's in this? Will it trigger a positive result?" Yes.

This is where I don't agree. That makes the player responsible for everything he puts in his body, which can't be read consistently with the actual CBA. The CBA does not envision a strict liablity regime. If it did, it wouldn't provide a "no fault or negligence" defense and woudln't affirmatively say a player doesn't violate it if he isn't at fault or negligent. (It also wouldn't affirm the right of the player to introduce medical treatment to prove "no fault or negligence, as it does.)

Absent some reason to ask the question of a doctor beyond simply being prescribed something by a doctor, the player isn't negligent for not asking the question. I don't see the reason in the STD hypo.



   169. Yardape Posted: March 01, 2012 at 03:48 PM (#4072049)
These are athletes; they can't be expected to know everything in a prescription medication.


Olympic athletes are. They are considered responsible for everything that goes in their body. If they asked their doctor and the doctor flat-out lied to them, that would be an excuse, but they sure better have asked the doc. I don't know if baseball's testing uses the same rules, but it wouldn't surprise me.
   170. The Id of SugarBear Blanks Posted: March 01, 2012 at 04:02 PM (#4072065)
The doctor need not know "anything about sports."

Never said he/she did. Not knowing anything about sports, though, would lead to a higher likelihood that the doctor wouldn't think about a positive piss test and wouldn't say anything about it, thus giving the player a better case. If I was a herpes doctor and Ryan Braun came to me, and put down "MLB baseball player" on his chart, I might say, "Hey, I'm a baseball fan, I know you guys take drug tests, this herpes medication has testosterone in it, you might piss out a positive test if you take it." In which case, Braun would be negligent in going forward and taking it.

If I'm not a baseball fan, I simply say, "Here's your herpes medication, Mr. Braun, good luck," then he isn't negligent for taking it.

   171. JJ1986 Posted: March 01, 2012 at 04:11 PM (#4072070)
If I'm not a baseball fan, I simply say, "Here's your herpes medication, Mr. Braun, good luck," then he isn't negligent for taking it.


Braun is supposed to ask about it.
   172. David Nieporent (now, with children) Posted: March 01, 2012 at 04:17 PM (#4072077)
If I'm not a baseball fan, I simply say, "Here's your herpes medication, Mr. Braun, good luck," then he isn't negligent for taking it.
Yeah, he really is. It's Braun's responsibility to ask. Failing to do so is negligent. Now, if he has just had a stroke and been rushed by ambulance to the hospital and is operated on and treated with a banned drug while unconscious, that would be an example of use that would be neither knowing nor negligent.
   173. The Id of SugarBear Blanks Posted: March 01, 2012 at 04:22 PM (#4072080)
Braun is supposed to ask about it.

Nope. There is no requrement in the CBA that the player ask every single doctor he ever sees whether something the doctor is prescribing will cause a positive piss test. (A) If there was, it's simple to spell out, and would have been spelled out; (B) Every doctor isn't and isn't expected to be conversant in every kind of piss test extant in private and public America. What if the herpes doctor just says, "I'm a herpes doctor, thefuck I know about piss tests?" Braun has to get a new doctor? If the next five say the same thing, he has to go to five more doctors?

If you don't have any reason to believe a medication would lead to a positive test, and the doctor doesn't say anything to that effect, you aren't negligent. The further and further you get away from conditions, ailments, and medications having nothing to do with sports, the closer and closer you get to being negligent.
   174. JJ1986 Posted: March 01, 2012 at 04:27 PM (#4072084)
Nope. There is no requrement in the CBA that the player ask every single doctor he ever sees whether something the doctor is prescribing will cause a positive piss test. (A) If there was, it's simple to spell out, and would have been spelled out; (B) Every doctor isn't and isn't expected to be conversant in every kind of piss test extant in private and public America. What if the herpes doctor just says, "I'm a herpes doctor, thefuck I know about piss tests?" Braun has to get a new doctor? If the next five say the same thing, he has to go to five more doctors?

If you don't have any reason to believe a medication would lead to a positive test, and the doctor doesn't say anything to that effect, you aren't negligent. The further and further you get away from conditions, ailments, and medications having nothing to do with sports, the closer and closer you get to being negligent.


You literally just made all of this up out of thin air. Braun is responsible for any prescription that he takes.
   175. The Id of SugarBear Blanks Posted: March 01, 2012 at 04:30 PM (#4072086)
You literally just made all of this up out of thin air.

Well, yeah (*). Who doesn't?

(*) Other than citing the exact language of the actual CBA anyway.
   176. David Nieporent (now, with children) Posted: March 01, 2012 at 04:56 PM (#4072111)
If there was, it's simple to spell out, and would have been spelled out;
It was. It says that negligence isn't a defense.

Every doctor isn't and isn't expected to be conversant in every kind of piss test
The doctor isn't testing for PEDs; he's administering them (or not). That's what he needs to be conversant with.
What if the herpes doctor just says, "I'm a herpes doctor, thefuck I know about piss tests?"
The same thing that happens if Braun says, "Wait a minute; I have diabetes. What will this medication do to me?" and the doctor says, "I'm a herpes doctor, what do I know about diabetes?" He researches it.
If you don't have any reason to believe a medication would lead to a positive test,
Unless the medication comes from Steroids R Us or you're a medical doctor yourself, you never have a reason to believe that. Which is why you need to ask.
and the doctor doesn't say anything to that effect, you aren't negligent.
I don't think you understand the concept of negligence.
The further and further you get away from conditions, ailments, and medications having nothing to do with sports, the closer and closer you get to being negligent.
Would you STFU about sports? Sports have nothing to do with this. It's a medical question.
   177. Ron J Posted: March 01, 2012 at 04:57 PM (#4072116)
#175 The problem is that you have a way of parsing the CBA that nobody seems to agree with. Please note that in this case I'm not saying you're arguing in bad faith, just that your take doesn't match what we know.

And I have to say that it's perfectly reasonable not to agree as to what the CBA actually means. Seems to me to be poorly worded in a lot of places and this ends up with the arbitrator actually setting policy.
   178. Something Other Posted: March 01, 2012 at 05:07 PM (#4072130)
If you get enough narrowly focused specialists involved then ... well it's easy to get into a situation where nobody is looking at the whole picture and everybody involved is assuming that somebody else is looking into that particular issue.

Are the physicians of MLB players really unaware of the steroid issues baseball has had? Do these physicians live under rocks?
Never underestimate the incompetence of doctors and their staffs. I had the misfortune to be more involved with doctors than I ever hoped to be for around three years, and quickly learned to bring in typewritten, dated lists of my current prescription and non-prescription drug use (or for the people I was helping). Prior to that it was rare for nurses and doctors not to make mistakes. After that it still wasn't unusual, as they'd misplace the list, misread it, assume the dosage was the standard dosage rather than what I was taking. I've had my specimens mislabeled, and tested for the wrong things. I've had blood drawn, and gotten a call that it had been stored incorrectly for a certain part of the test and had to be thrown out.

It's not that I think I've had bad luck, or think I've run into particularly incompetent doctors and staff. It's that I pay extremely close attention and probably catch a lot more mistakes than people who don't--after all, it was my life, and the life of people I cared about. It's just that medicine is difficult, and there are thousands of mistakes waiting to be made.

I was appalled. I'm still appalled. Just the standard policy of "we'll call you if there's anything unusual about your test" is insane on the face, and has a 7% error rate. It's as though your nurse drew blood, rolled a fourteen sided die, and if it came up "fourteen" threw the blood draws in the garbage. Fecking amazing.

edit: just to ##### some more, I went to a dentist two weeks ago. I had two cavities. I had a tooth in back that broke ten years ago. I told her I wanted her to leave it alone since it had never caused me any trouble. She goes away for ten minutes to finish with another patient, comes back, and the first thing she does is start drilling the tooth I had asked her specifically not to touch. It's incredible what goes on.


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.
Yikes. There's a ton of things than can go wrong from here.
   179. Random Transaction Generator Posted: March 01, 2012 at 05:11 PM (#4072141)
If the Commissioner’s Office meets its initial burden, the Player then has the burden of establishing that his test result was not due to his fault or negligence.


I think this language is to exempt the player from blame if the sample is accidentally/deliberately compromised by someone other than the player. Unsterilized collection device, poor handling of the sample, accidental contamination during testing, something like that.

The "J.C. Romero defense" (supplement contained unlisted substance) falls under "negligence".

   180. The Id of SugarBear Blanks Posted: March 01, 2012 at 05:16 PM (#4072148)
It was. It says that negligence isn't a defense.

It says that lack of negligence is a defense. That means it isn't strict liability.

The same thing that happens if Braun says, "Wait a minute; I have diabetes. What will this medication do to me?" and the doctor says, "I'm a herpes doctor, what do I know about diabetes?" He researches it.

Huh? The herpes doctor on Madison Avenue has to know everything there is to know about Wal-Mart's piss tests?

If Braun goes to a herpes doctor for diabetes, the herpes doctor says "Go to someone who knows about diabetes." Maybe in 1897, he didn't but in 2012, he does. Doctors in 2012 are specialists. Herpes doctors treat herpes; they don't spend their time in the stacks looking at a bunch of legal hoo-hoo on piss test procedure and they don't "research" ailments outside their specialty.

In any event, in the real world, the doctor's going to say "I don't know, that's not my job." He isn't going to vouch that you're going to pass a piss test and set himself up to be sued if you don't

And that's where it will be left with every serious doctor he sees in your scenario. Braun will ask, the doctor won't answer. You'd have it that the CBA requires Braun to shop around for three months for a doctor who'll run his mouth on piss tests to get a serious medical condition treated. That's absurd.

It's a medical question.

It's not a medical question; it's a legal question.
   181. Greg Pope thinks the Cubs are reeking havoc Posted: March 01, 2012 at 05:27 PM (#4072165)
And that's where it will be left with every serious doctor he sees in your scenario. Braun will ask, the doctor won't answer. You'd have it that the CBA requires Braun to shop around for three months for a doctor who'll run his mouth on piss tests to get a serious medical condition treated. That's absurd.

And, according to #164, Braun is negligent if he still takes the medicine. Which is why I asked about the definition of "negligent". You seem to be using a different definition.

Under your scenario, Braun goes to the league office (or wherever) and says "My doctor prescribed X. Is that OK? If not, can I get an exclusion?".
   182. Graham & the 15-win "ARod Vortex of suck" Posted: March 01, 2012 at 05:40 PM (#4072179)
I am NOT a lawyer, but SugarBear's definition or interpretation of negligence is different than the standard way it has always been described to me. I have always had "negligence" described as it was in #164. This includes my high school civics class, business law in college, and any attorney I've ever heard mention it. Of course, everything I've ever learned could be wrong.
   183. The Id of SugarBear Blanks Posted: March 01, 2012 at 05:45 PM (#4072191)
Which is why I asked about the definition of "negligent". You seem to be using a different definition.

Not a different definition, a different interpretation. Mine happens to be right, and DMN, who accurately defined negligence, is wrong -- but these things happen.

If you go down his declining responsibility spectrum in 164 -- also accurate -- the fifth thing would be "strict liablility" where you're essentially responsible for what happens whether or not you're at fault. A typical example would be statutory rape (at least in most states), prohibiting sex with someone under 18. If Lawrence Taylor gets on a 15 year old, it doesn't matter that she told him she was 19 and appeared to be 19 and showed him a drivers' license with a 1993 birthday and put him on the cell with her friend who said she was 19 -- he's liable.

The people disputing my interpretation are basically saying MLB's drug testing system is strict liability, in that you're strictly liable if you don't affirmatively ask the doctor whether you'll fail a piss test. They're couching it in terms of negligence, but by saying that it is ALWAYS negligent not to affirmatively ask, they're turning it into a standard lower than negligence on the spectrum.

Reasonableness, the negligence standard, is always dependent on facts and circumstances. What's reasonable under the circumstances? There are no hard and fast rules like the one they're suggesting.(*)

(*) That's not entirely true; a requirement laid out in a statute can be interpreted as a hard and fast negligence standard, but we don't have that here.

   184. Misirlou's been working for the drug squad Posted: March 01, 2012 at 05:47 PM (#4072193)
If Braun goes to a herpes doctor for diabetes, the herpes doctor says "Go to someone who knows about diabetes." Maybe in 1897, he didn't but in 2012, he does. Doctors in 2012 are specialists. Herpes doctors treat herpes; they don't spend their time in the stacks looking at a bunch of legal hoo-hoo on piss test procedure and they don't "research" ailments outside their specialty.


Oh good Lord, are you really this dense? The pharmaceutical companies do the research for you, because they are required to by the FDA. Haven't you ever heard "Do not take Zoloft if you are pregnant, may become pregnant, have high blood pressure, or..." Any doctor can research possible side effects and harmful interactions with the click of a mouse. Frankly any doctor who answers your concerns about possible side effects with "How the hell am I supposed to know?" is a doctor soon to be without patients.
   185. The Id of SugarBear Blanks Posted: March 01, 2012 at 05:51 PM (#4072199)
Oh good Lord, are you really this dense? The pharmaceutical companies do the research for you, because they are required to by the FDA. Haven't you ever heard "Do not take Zoloft if you are pregnant, may become pregnant, have high blood pressure, or..." Any doctor can research possible side effects and harmful interactions with the click of a mouse. Frankly any doctor who answers your concerns about possible side effects with "How the hell am I supposed to know?" is a doctor soon to be without patients.

Huh? Who's talking about side effects? We're talking about a herpes doctor prescribing herpes medication being asked to research whether it will cause failure of a piss test he knows nothing about. Failing a piss test isn't a "side effect."
   186. JJ1986 Posted: March 01, 2012 at 05:52 PM (#4072200)
in that you're strictly liable if you don't affirmatively ask the doctor whether you'll fail a piss test.


This is a contradiction.
   187. AuntBea Posted: March 01, 2012 at 05:57 PM (#4072203)
There seems to be a difference of opinion about what steps a reasonable MLBer would be expected to take (to ensure that he does not violate the drug policy) when prescribed medication. There really is no "one and only" answer to this question. I tend to think that neglecting to get a very definitive answer from "someone who should know" would generally constitute negligence, but that doesn't mean that all of SBB's arguments are completely invalid. I believe he is claiming that it is not necessarily unreasonable for someone in Braun's position not to get this definitive answer before taking the herpes medication. That is consistent with the negligence standard.

edited for clarity
   188. The Id of SugarBear Blanks Posted: March 01, 2012 at 06:05 PM (#4072206)
There seems to be a difference of opinion about what steps a reasonable MLBer would be expected to take (to ensure that he does not violate the drug policy) when prescribed medication. There really is no "one and only" answer to this question.

Exactly. It's a factual question, not a legal one. If I had an MLBer who went in to a doctor to get herpes treated, the doctor gave him medication and didn't get into components or piss tests, and that triggered a positive test -- and I could prove all that -- I'd be very, very comfortable taking that case to arbitration. The CBA doesn't say Braun has to ask questions when seeking private medical treatment, and it's perfectly reasonable to mentally segregate your private life and private ailments from your on-the-job life. In that hypothetical scenario, he isn't negligent.

   189. Eddo Posted: March 01, 2012 at 06:05 PM (#4072207)
Huh? The herpes doctor on Madison Avenue has to know everything there is to know about Wal-Mart's piss tests?

No, but if a patient says, "My company will fire me if XXX is found in a drug test; will this medication cause XXX to be found?", the doctor is expected to give an accurate answer.
   190. David Nieporent (now, with children) Posted: March 01, 2012 at 06:13 PM (#4072216)
The people disputing my interpretation are basically saying MLB's drug testing system is strict liability, in that you're strictly liable if you don't affirmatively ask the doctor whether you'll fail a piss test. They're couching it in terms of negligence, but by saying that it is ALWAYS negligent not to affirmatively ask, they're turning it into a standard lower than negligence on the spectrum.
No. Strict liability would be a system in which it doesn't matter whether you ask, or whether the doctor was mistaken or even lied to you. Having to affirmatively ask is nothing remotely like strict liability. "Strictly liable if you don't affirmatively ask" is complete gibberish. Using your statutory rape example (which, for non-lawyers, is the canonical law-school example of a strict liability crime, although, in fact, it's only strict liability in about half the states), "strict liability if you don't ask how old she is" doesn't make any sense. Strict liability = doesn't matter whether you ask.

If a client comes to me for a legal opinion on a subject and I give him advice which costs him a lot of money, I can't defend myself by saying, "He never told me about X," because it's my job to ask. The very fact that I failed to ask is what constitutes my negligence. If, on the other hand, I asked about it but he lied to me, then I am not at fault, because I was not negligent. If I were strictly liable, then I'd be at fault even if he lied to me, because that's what strict liability means.
   191. AuntBea Posted: March 01, 2012 at 06:19 PM (#4072222)
If a client comes to me for a legal opinion on a subject and I give him advice which costs him a lot of money, I can't defend myself by saying, "He never told me about X," because it's my job to ask. The very fact that I failed to ask is what constitutes my negligence.


Depends on if a lawyer acting reasonably in that situation would be expected to ask about X. Not every possible X need be asked about to avoid liability for negligence. SBB claims that Braun is not reasonably expected to ask about his herpes medication. I don't happen to agree with him, but you seem to be intentionally ignoring what he is saying.
   192. Misirlou's been working for the drug squad Posted: March 01, 2012 at 06:29 PM (#4072236)
If a client comes to me for a legal opinion on a subject and I give him advice which costs him a lot of money, I can't defend myself by saying, "He never told me about X," because it's my job to ask.


I was on a jury once, in a legal malpractice case. The plaintiff hired a lawyer to represent them in a real estate purchase of vacant property. 5 years later when the plaintiff applied to build a home, he was informed that the lot wasn't eligible due to zoning restrictions. They sued their lawyer because he didn't research properly prior to closing. According to plaintiff witnesses, it would have taken a 5 minute phone call, and is customary to research zoning in all cases. His defense was "They didn't tell me they wanted to build a house, so I didn't check." We found for the plaintiff and awarded damages. 2 days later, the Judge threw out the verdict and summarily found for the defendant.
   193. The Id of SugarBear Blanks Posted: March 01, 2012 at 06:37 PM (#4072241)
No. Strict liability would be a system in which it doesn't matter whether you ask, or whether the doctor was mistaken or even lied to you. Having to affirmatively ask is nothing remotely like strict liability. "Strictly liable if you don't affirmatively ask" is complete gibberish. Using your statutory rape example (which, for non-lawyers, is the canonical law-school example of a strict liability crime, although, in fact, it's only strict liability in about half the states), "strict liability if you don't ask how old she is" doesn't make any sense. Strict liability = doesn't matter whether you ask.

If a client comes to me for a legal opinion on a subject and I give him advice which costs him a lot of money, I can't defend myself by saying, "He never told me about X," because it's my job to ask. The very fact that I failed to ask is what constitutes my negligence. If, on the other hand, I asked about it but he lied to me, then I am not at fault, because I was not negligent. If I were strictly liable, then I'd be at fault even if he lied to me, because that's what strict liability means.


The automatic affirmative duty you've written into the CBA moves it down your spectrum of fault to something much closer to strict liability. Whether or not it is all the way down doesn't really concern me, and I said as much. You're presuming negligence in all cases when the patient doesn't ask the question -- regardless of what he's seeking treatment for, regardless of the connection between the medication and the piss test and what that would mean to the layman mind, and regardless of the connection between his medical condtion and his job as an athlete. That isn't a proper definition of negligence. The CBA makes lack of negligence a defense, your model doesn't.

Your analogy doesn't work, as its subject is professional liability and the negligence standards are different for professionals. Braun is a layman. The doctor is the analogue to your lawyer, and the doctor (obviously) has no duty to affirmatively inquire into whether Braun is subject to piss tests.
   194. JL Posted: March 01, 2012 at 07:22 PM (#4072273)
If Braun goes to a herpes doctor for diabetes, the herpes doctor says "Go to someone who knows about diabetes." Maybe in 1897, he didn't but in 2012, he does. Doctors in 2012 are specialists. Herpes doctors treat herpes; they don't spend their time in the stacks looking at a bunch of legal hoo-hoo on piss test procedure and they don't "research" ailments outside their specialty.

You are completely missing this. Braun goes to the herpes doctor, who perscribes him a medicine. Braun says "I have diabetes, what will this herpes medicine do to me"? The doctor does not say I don't know, go to a diabetes doctor. He would look it up and see what type of interaction the herpes medicine would have with diabetes and diabetes medicine. The same would be done if Braun asks if the herpes medicine has any PEDs in it. He
   195. David Nieporent (now, with children) Posted: March 01, 2012 at 09:44 PM (#4072367)
The automatic affirmative duty you've written into the CBA moves it down your spectrum of fault to something much closer to strict liability.
No, it doesn't. You don't understand the concept of negligence.
Whether or not it is all the way down doesn't really concern me, and I said as much. You're presuming negligence in all cases when the patient doesn't ask the question -- regardless of what he's seeking treatment for, regardless of the connection between the medication and the piss test and what that would mean to the layman mind, and regardless of the connection between his medical condtion and his job as an athlete. That isn't a proper definition of negligence. The CBA makes lack of negligence a defense, your model doesn't.
I'm not presuming negligence in all cases when the patient -- not a random patient, but a professional athlete under this testing regime -- doesn't ask the question; I'm defining that to be negligence. And yes, that's a proper definition of negligence. An athlete has a duty to ask. Failing to do so is a breach of that duty.
Your analogy doesn't work, as its subject is professional liability and the negligence standards are different for professionals. Braun is a layman. The doctor is the analogue to your lawyer, and the doctor (obviously) has no duty to affirmatively inquire into whether Braun is subject to piss tests.
The analogy is actually perfect. The definition of negligence is the same for professionals; what's different is that, rather than looking at the reasonable person, we look at the reasonable professional. Similarly, rather than looking at what the reasonable patient would do, we ask what the reasonable professional athlete would do.
   196. Ron J Posted: March 01, 2012 at 09:58 PM (#4072376)
#195 The thing is that even a reasonable professional athlete or doctor might not have known about the issues relating to Andro in supplements. Yeah, I see the other side of the argument. You knew about. I knew about it and both of us have a lot less reason to care than a professional athlete (or his doctor)

Presumably that's a working definition for negligence -- being less well informed than an informed outsider.
   197. Greg Pope thinks the Cubs are reeking havoc Posted: March 01, 2012 at 10:15 PM (#4072387)
The thing is that even a reasonable professional athlete or doctor might not have known about the issues relating to Andro in supplements.

But if and athlete is subject to testing, it is very reasonable for him to ask his doctor if this medication will cause a problem. If the doctor doesn't know, and chooses to tell the athlete "no", that sounds like the athlete would NOT be negligent. He did what you'd expect. If the athlete doesn't ASK, he's negligent.

This sounds perfectly reasonable to me. I don't know how you would claim that an athlete who knows he's under a strict testing policy shouldn't be expected to ask his doctor about a medication.
   198. Ron J Posted: March 01, 2012 at 10:24 PM (#4072389)
#197 But supplements aren't medications, or at least I've never thought of them that way (and I don't think I'm unusual in that respect). And the notion that they could be unlabeled and still have something in them that could cause a positive test is surprising to most people. I know that when ~20% of supplements that were tested turned out to have Andro in them everybody was really surprised.

The thing is that the study in question was done years before there was any form of testing and it's something that you'd expect an athlete's personal doctor to be aware of.
   199. Tripon Posted: March 01, 2012 at 10:32 PM (#4072394)
Supplements are considered 'food' and are not regulated by the FDA.
   200. Greg Pope thinks the Cubs are reeking havoc Posted: March 01, 2012 at 10:47 PM (#4072406)
Sorry, Ron, I must have glossed over that part. I didn't realize that you had mentioned supplements. And yes it's in the part I quoted, but still...

Anyway, you're right, the supplements thing is different. But that was also a while ago, IIRC. These days an athlete should be expected to investigate and know what's in the supplements, too, IMO.
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