Save the Sympathy For Someone More Deserving

Everyone is for drug testing until they are against it.  And they’re usually against it when the outcome effects them in a personal way.

That is the only explanation I can muster as to why so many are sympathetic to Josh Gordon at the moment.  The mercurial Cleveland Browns receiver received confirmation this week of the fate that was inevitable once he struck out swinging at the NFL’s drug policy, a year long suspension.  The thought that this putrid Cleveland Browns team could be deprived of its only playmaker for the season suddenly turned soft the noggins of fans and media types alike.

Without belaboring to state the obvious, this team has more than proven that it’s a perennial 4-5 game winner, even with Gordon.  Things aren’t going to change in the near future for this team’s fortunes for reasons well beyond the control of Gordon.

But as for what’s in the control of Gordon, that’s actually hard to say.  From all the evidence presented, he appears to be a drug addict.  He’s now tested positive at least 6 times for illegal drugs, in college and the pros.  This is not about second chances.  It’s about seventh chances.  He’s more than worn out the patience of those continuing to enable his demons.

One could argue forcefully that the only group effected personally by the positive drug test result of Josh Gordon is Gordon himself and his family.  But the way the media and fans are reacting it’s as if they’ve been kicked in the gut as well.  Hardly.

Gordon is no one’s cross to die on.  We all should simply ignore the embarrassing and tone deaf second hand smoke defense that his legal team offered. The outcome of the arbitration hearing was hardly in question.  Well before he tested positive this time, Gordon knew the tightrope he was walking and the consequence for tripping.  Like any headstrong, immature, pampered egomaniac, he thought he could beat the system.  He couldn’t and he didn’t.  The punishment he got he deserved.

Bill Livingston, a columnist for the Plain Dealer (assuming the name hasn’t been auctioned off by the Northeast Ohio Media Group in order to buy more servers for their digital strategy), has taken up Gordon’s cause as a fan proxy by questioning the strictness of Gordon’s penalty given what are the rumored “facts” of this case, meaning the relative levels of marijuana in Gordon’s system and how other leagues use other levels.

It’s hard to avoid the most obvious pun by calling this line of argument a smokescreen.  But Livingston’s been in a fog for most of his career anyway.  The league and the union have a collectively bargained drug policy and protocol.  This is what the parties voluntarily agreed to and the rules under which Gordon and his co-workers operate. 

The purpose of this argument about the relative levels is to somehow give credence to the ridiculous defense that somehow this serial drug user ended up in the wrong place at the wrong time and was victimized by exposure to second hand smoke. 

Gordon is no victim.

There’s a far more plausible and simple explanation.  Gordon is lying.  Indeed why would he even deserve the benefit of anyone’s doubt?  He has the most to gain or lose in offering up an argument that isn’t even correct medically, let alone practically.  Gordon has been caught smoking dope numerous times in college and the pros but suddenly he’s reformed and just happened to be at the wrong place at the wrong time?  Why would any logical thinking person think that’s more likely than the far more likely scenario that Gordon once again smoked dope and didn’t think he’d get caught?  Obviously Harold Henderson, the arbitrator in this case didn’t buy it and neither should anyone else.

Indeed what’s most offensive in this case is Gordon’s abject unwillingness to own his own misbehavior and mislead the team and it’s fans into thinking that this time he didn’t do anything wrong.  The reason guy’s like Gordon don’t seem to ever learn is because they are surrounded by enablers, including gullible media types and lawyers, willing to further a bullshit narrative in order to avoid the real life consequences of bad actions. 

The Cleveland Browns are a worse team without Josh Gordon but the only person responsible for that statement is Josh Gordon.  The unwillingness of the arbitrator to buy into Gordon’s “defense” doesn’t make the arbitrator the bad guy here.  Neither is the league nor the union to blame for the outcome.  Gordon simply can’t learn the simple lesson of what it would take to stay in the league and for that he now finds himself on the outside looking in.

It’s almost comical really how twisted the thought process of others has become.  Livingston, for example but hardly the only example, goes down the path of noting the supposed number of drug tests that Gordon passed already as, what, proof that he’s reformed?  I don’t think we even need to stretch as far as the Lance Armstrong fraud to talk about how ludicrous it is to make the argument about how previous positive tests portends compliance.  The reason Gordon was subjected to such long term testing was precisely because he has a history and eventually if a person hasn’t reformed he’ll get caught again.  Gordon hasn’t reformed.  He got caught again.

Gordon put together an amazing, record-setting season last year while dancing on the head of a pin.  Where opposing defenses couldn’t trip him up, where a parade of mediocre at best quarterbacks throwing to him couldn’t slow down his accomplishments, all it took for Gordon to regress was an off season filled with more time then he knew what to do with.

The decriminalization of marijuana may be your issue, have at it.  But that has nothing at the moment to do with Gordon’s status as a multi violator of league rules.  Gordon’s job, his life, is in jeopardy because Gordon lacks the self control to change the course.  Given his history, there’s no reason to think that even this suspension will move his needle.

I think it’s dangerous to take up the cause of someone like Gordon in order to further the larger debate about the relative dangers of marijuana.  It matters not at all whether marijuana is legal in a few states and otherwise available by prescription in most others.  The same can be said for most performance enhancing drugs as well.  The point, again, is that the league and its union voluntarily put in place a set of rules on what substances are prohibited, what the testing protocol for those substances should be, and what penalties would be assessed for violations.  It’s up to those parties to decide if and when they want to change their rules. 

Of course the other thing that’s getting people twisted up in their shorts is the severity of Gordon’s penalty in the context of the league’s kid glove treatment of Ray Rice for beating his then girlfriend and dragging her out of an elevator in an Atlantic City casino.  One of the local television stations even ran a “fan poll” asking if the Gordon penalty was too severe compared to Rice’s. I’m guessing they didn’t consult an expert in polling as the question answers itself nor should they be surprised by the results.  Of course a year-long suspension is more severe than a two game suspension. Duh.

Rice ran afoul of the league’s personal conduct rules.  His actions reflected poorly on the league and that’s what put him in the crosshairs of the commissioner.  There are no prescribed penalties for domestic violence.  It is case by case.  Roger Goodell may have done a lousy job in exercising that discretion but it was his to exercise.

There was no discretion to be exercised in Gordon’s case.  His previous violations put him down a path of progressive discipline with the next violation resulting in a season long suspension.  There was no dispute that Gordon had dope in his system.  Case over.  The only real mystery is why the arbitrator waited so long to issue the opinion.  Perhaps he was on vacation.

I have no sympathy for Gordon and neither should anyone else, at least in the context of the punishment meted out.  My sympathy for Gordon extends to him personally with the hope that he gets help for the problems that he clearly has.  But if he never plays another game for the Browns or in professional football, it won’t impact anyone’s life but his own and those for whom he’s supporting.

The next step is his.  What would make this story better is if Gordon really uses his time away to make positive changes in his life.  Everyone likes a resurrection story.  With Gordon, though, there’s reason to worry.  He’s still in hard denial about his actions this time and he didn’t learn any lesson from the previous five (at least) positive drug tests.  There’s no reason to think he’ll learn anything meaningful from the sixth.

A Matter of Trust

Never has a moment in baseball made me feel more like Michael Coreleone in Godfather III then the rescission of the 50-game suspension handed down to last year’s National League MVP, Ryan Braun, when he tested positive for extremely high levels of testosterone.

Just when I thought I was out, they pull me back in. I thought I was through with screaming from the rooftops about how poorly baseball is run and how foolish they've been in dealing with the drugs. Weren't they getting better? Hardly.

At this point, major league baseball remians popular by accident. It has a business model that makes no sense. It has too many teams that never have a realistic chance of competing. It operates under separate sets of rules between the leagues, which is idiotic. But perhaps its biggest problem is that it is presided over by Bud Selig, The Worst Commissioner in Baseball History™, a point I’ve made before and now need to make again.

My issues with Selig stem mostly from his fragile spine. He’s never once stood up for the game in a meaningful way by staring down narrow-minded owners who care only about their bottom line and not the health of the entire sport. And even in those rare cases where he could get consensus with the owners, Selig had no ability to take on a players’ union run by short-sighted shallow thinkers over any issues of substance, including substance abuse. By not standing up, Selig has fallen for almost every issue, not the least of which was baseball’s rampant drug problem, one of the worst scandals in American sports.

Selig’s apologists point to his leadership in bettering baseball’s drug policy as proof of his effectiveness while conveniently forgetting that Selig’s conversion on this issue came not of his free will but at the business end of a gun pointed at his head by Congress.

And yet, while baseball’s drug policy is indeed far better these days along comes a case like Braun's to put baseball and its approach nearly back to square one. Losing the Braun arbitration in the way they did makes it look as though baseball is being run by Peter Griffin. Maybe that would actually be better.

The Braun case more than demonstrates that baseball's brain trust can't even handle a urine sample effectively. How can it be trusted on anything reeking of even slightly more complication?

Let’s set the background.

Braun has claimed that his elevated testosterone levels aren’t the result of illegal drug use, which seems dubious if only because I’m still waiting for the first person to test positive to actually admit that they really did ingest illegal drugs.

Braun’s argument raised questions about the integrity of the testing process and was buttressed not by his actual test results but by the inherent distrust most people have toward drug testing in the first place. Anyone who has ever been subjected to a drug test, and by now that’s most of us, always fears the mythical “false positive” test. Despite the sophistication of the testing at this point that makes it nearly impossible to get a “false positive,” the potential for a false result hangs over the program like Billy Crystal hangs over the Oscars.

And so it is, sometimes to extremes, that we let irrational fears like these drive results that don’t seem plausible. Irrational or not, however, the fact remains that whenever there is any sort of hiccup in the protocol related to procuring and then securing the urine sample the results will always be suspicious. But that's not news. Nearly every drug testing case that is lost is because of an issue related to the testing protocol, no matter how small or insignificant of an issue it might be.

Had baseball’s deep thinkers remembered this while taking a more sober view of their case and acknowledged this fact before they ever decided to suspend Braun, this mess could have been avoided and Braun, if he is a drug user, caught under circumstances that could never have been questioned.

Braun based his claim of a false positive on what his lawyers argued was a broken custody chain in the handling of his urine sample. That’s not really true, but it’s true enough, which was also enough for neutral arbitrator Shyman Das.

The reason it’s true enough is simply that the person who took the urine sample for major league baseball never bothered to read Protocol 101. The same holds for MLB’s lawyers. From the time that the sample was collected until it was shipped (not tested, but shipped) was 44 hours or nearly two full days. The protocol in baseball is that once the sample is collected it is to be shipped immediately via FedEx to baseball’s testing lab in Montreal.

When Braun’s sample was collected, it was a Friday evening and supposedly after the local FedEx office had closed. So the collector let the sample sit in a container of Tupperware on his desk for almost two days, which reminds me never to accept an invitation to eat leftovers at that collector’s house.

You don’t need to know any more about the case than that to know that baseball should have just bit its lip and thrown out the sample and either re-tested Braun or lived to fight another day. No arbitrator was ever going to sign off on the results and the punishment that comes from them under that scenario. Again, it’s the fear of a false positive that mandates there be no screw up, no matter how small or insignificant in the testing process.

Anyone who has litigated a drug case, and I’ve done several of them, knows this to be the case. Yet baseball’s lawyers convinced baseball’s management that this fact didn’t matter and now they have a mess on their hands.

How did they get to this point? Because when you look at it holistically and not necessarily legally, you pretty much come to the conclusion that Braun had something illegal in his system. So you try to make it work because suspending the reigning MVP is a pretty big get.

In fairness to the collector, it wasn’t as if Braun peed directly into the Tupperware container. Braun peed into one of those brown bottles and handed it over. The collector immediately placed a seal over it, put that sealed bottle into a packet and sealed that packet as well and then put the packet into a FedEx box that he likewise sealed. To that point the protocol was followed and most of us know the routine. It’s just that with the FedEx office closed, the collector held onto it for 44 hours before sending it along. Once it arrived in Montreal, everything was completely in tact and sealed. There was no evidence that any of the seals had been tampered with or, by extension, that the sample was tainted.

That's pretty powerful stuff. But where major league baseball screwed up was in testing Braun at a time of day when the sample couldn’t be immediately shipped, though as Lester Munson, writing for ESPN, noted, Braun’s attorneys more or less debunked baseball’s claim that the FedEx office wasn’t open by highlighting several other FedEx offices nearby that were.

Because the sample sat in a sealed pouch for two days at the collector's house instead of in a lab, that raised more then enough doubt in the mind of the arbitrator on an issue that is fraught with doubts anyway. With the test discredited Braun’s suspension had to be overturned.

It's understandable how baseball got into this predicament. You combine a seemingly guilty looking player with a baseball hierarchy known more for missteps then efficient execution you end up with a recipe that yields a result pretty much in line with what they got. Yet if they had tested Braun a day earlier or maybe two days later, either of which would have been at a time when they could have found an open FedEx office, they could have nailed Braun and, in turn, looked serious about finally ridding the sport of drugs.

As it is, they look foolish instead. Maybe now Selig will understand that simply saying you have a world class drug testing program doesn’t make it so. As for ridding the sport of drugs, we’ll this is certainly a step backward. Unwittingly, by virtue of their own hubris, major league baseball has created the impression that they can’t be trusted. And that, really, is the sad legacy that Selig has written for the sport he claims to love.

Another Chance to Get It Wrong

Major League Baseball is at the forefront of professional sports in ridding its game of illegal drugs, just ask them. Rob Manfredi, executive vice president in charge of labor relations said as much in commenting on what he termed further improvement to what already is professional sport’s best drug testing policy, at least according to Manfredi.

What prompted this most recent self-congratulatory nod was the announcement that Major League Baseball and the players’ union had reached still another agreement regarding its drug testing policy. As reported by ESPN.com, Manfredi said “Going into this negotiation, the commissioner was 100 percent correct that we had the best program in professional sports. These changes just solidify that kind of premier leadership position in my view.”

Hardly. Under the guise of strengthening the current drug testing program, the players union, under the misguided leadership of Donald Fehr, once again outbargained management by using Commissioner Bud Selig’s paper tiger of threat to suspend players named in the Mitchell Report against him by giving MLB the sleeves off their vest. Fehr ensured that no player named in the Mitchell Report would be subject to punishment. To get that concession all they did was have to negotiate around the fringes of a seriously-flawed drug problem that only its authors think is world class.

Nonetheless, ESPN’s major league baseball shill Buster Olney bought the party line when he said on Friday that only an idealist would continue to find problems with baseball’s drug testing policies. If by idealist Olney means anyone with a brain, then a bunch of us are guilty as charged. Olney and his ilk may be weary from the distraction of having to report about baseball’s drug problems, but that is no excuse for not holding baseball accountable for its thumb-sucking on this issue.

As for Manfredi, he probably never really read the Mitchell Report or the various and sundry articles and opinions of real experts who have an opinion that if not 180° different than Manfredi’s is at least 178. See, that’s the problem with Major League Baseball. It’s never shown leadership under Selig in much of anything, particularly when it comes to ridding its sport of drugs. Virtually every action it has taken of any consequence regarding performance-enhancing drugs, including this most recent amendment to the policy, has been under pressure from an outside source. Left to its own indifference, MLB would have simply let Fehr continue to control the dialogue. It’s what it did until Congress showed up.

Undeniably, the latest iteration of baseball’s drug policy is an improvement, but that’s only because it would have been impossible to take a step backward. As I noted just a few months back (see here), when the denizens of baseball first appeared before Congress after the Mitchell Report was issued, Selig took a rather meaningless “bucks stops here” approach given how performance-enhancing drugs were allowed to flourish under his watch. He didn’t so much fall on his sword as shrug his shoulders, which is his wont.

At that Congressional hearing, Selig and Fehr were grilled about some of the more obvious flaws in their program, a few of which they addressed in the new agreement, but not fully. For example, although baseball began banning and testing for amphetamines in 2006, they opened up a therapeutic use exemption that the players are now exploiting with impunity. In 2006, 28 players were able to find their version of Samatha Stevens’ Dr. Bombay to write them a prescription for Ritalin, the amphetamine of choice among discriminating drug users in baseball. In 2007, that number jumped to 107, a number which Congressman John Tierney of Massachusetts labeled as eight times the general population.

Manfredi, responding to that report, seemed flummoxed as much as clueless, claiming he had no idea why the number would jump so precipitously. If Manfredi is really that unsure of how that kind of jump could occur, then he seems uniquely unfit to be in charge of labor relations at the local Dairy Mart, let alone all of Major League Baseball.

Surprisingly, the latest amendment to the drug testing policy didn’t even address this issue. Here’s predicting that Manfredi will be equally surprised when the number of players using the therapeutic-use exemption continues to skyrocket in relation to the additional drugs banned under the amended policy.

One area that the parties did address were the embarrassingly low number of off-season drug tests that occurred, although slightly. Until this latest deal, baseball was permitted to conduct only 60 total off-season drug tests among the 1300 or so players. No need to call the MIT math department to run the calculations on the odds of being tested under that formula. Under the amended program, that number jumps to 375 tests in a three-year period, or 125 a year. That basically doubles the number off yearly off-season tests, theoretically doubling the odds of a player getting tested. That all sounds good but when you’re starting with 60 tests, doubling it is hardly marked improvement. The chance of being tested in the off-season still isn’t likely to scare any drug-using player straight.

Another key flaw in the previous drug testing program that was addressed, although not completely, was the fact that it was conducted in-house with the ability of either management or the union to fire the supposedly independent administrator at any time. Baseball still didn’t move the program to an independent outside agency, as recommended in the Mitchell Report, but did at least protect its administrator by adding a “just cause” provision before his removal by either side.

It sounds good, but in reality all the union needs to do in order to dump the administrator for one more to its liking is to trump up a reason to get rid of the administrator that goes beyond the current standard of not liking the cut of his jib. How hard can that be? After all, this is the same sport that pretty much accepted that the Indians’ Paul Byrd needed his dentist to prescribe for him human growth hormone in order to address a pituitary problem. Apparently Byrd’s gynecologist was unavailable.

But before we get too overridden with cynicism, let’s remember that baseball and its union decided that each of the top 200 draft prospects in the annual amateur draft would be subject to drug testing. If a player tests positive, he’s eligible for selection. If a player refuses, he can’t be selected. Under that rubric, why would a player ever refuse? Presumably, a positive test might impact a prospect’s draft position, but remember you’re dealing with major league teams here. Character, including prior drug use, is much further down the list of considerations in drafting or signing a player, above legal blindness, well below on base percentage or velocity.

Not surprisingly, the experts aren’t satisfied with baseball’s latest drug turn. According to the Associated Press, Dr. Gary Wadler, chairman of the World Anti-Doping Agency’s committee that determines the banned substances list sad “This still falls significantly short of the mark, no matter what internal bureaucracy they've patched together.” Wadler was particularly critical of the fact that baseball’s policies still do not call for blood testing for human growth hormone and for not turning the testing over to an outside agency.

But Wadler, too, is apparently just some wide-eyed idealist because if Major League Baseball says it has the best testing program in professional sports than it must be true. So drinks all around. Kudos to Selig, Manfredi and Fehr. It is cause for celebration, particularly if you’re a major league ballplayer. They should be gratified to know that while their leaders may not have materially improved their regrettable history with coddling drug use in their sport, they did manage to insure that as long as they’re in charge, every player will remain a drug suspect.