Ryan Braun and PEDs

Unless you're living in a cave without Wifi, by now you're well aware that MLB got their man last night. Ryan Braun agreed to a suspension that ends his 2013 season and amounts to a 65 game penalty assuming the Milwaukee Brewers don't make the playoffs, which seems like a safe assumption.

As you would expect, the vast majority of the mainstream sports media spent the evening in the throes of a jubilant celebration. In terms of casting judgment on Ryan Braun, it is difficult to cast too much blame on anyone, even if some of the reactions came across as harsh. Braun's sudden about face given his multiple statements of innocence in the past make it virtually impossible to give him the benefit of the doubt about prior use. While it certainly is a possibility that Braun and his attorneys decided it was better to take a shorter suspension rather than risk a longer suspension and leave even more money on the table fighting the case, this rationale is the epitome of grasping at straws. Defending Ryan Braun at this point is a fool's errand, so I'll leave that task to a bigger fool than I.

However, this doesn't mean that we all should be reenacting the end of An Officer and a Gentleman and collectively tossing our hats into the air in wild celebration. While MLB got their man and will probably get many more of their men there are some serious questions that should be asked – and answered.

Lost in the celebration is that the testing process failed. We know it failed with Ryan Braun but in Braun's case, he never contested the test but only the handling of the sample. However, the majority of the names on the list published by ESPN on June 5 have never been suspended as the result an MLB/MLBPA sanctioned drug test. One of two conclusions can be drawn from this fact:

• the players on the list who were never suspended never did PEDs
• the players on the list who were never suspended did PEDs but managed to successfully elude/evade the testing process

If every single player on the list did take performance enhancing drugs (NOTE: I am saying if, I am not presuming innocence or guilt in any manner), this speaks to a significant failure in the testing process. The takeaway from this investigation for some is that MLB is doing a terrific job attempting to punish players who fell through the testing process. This viewpoint misses a far more vital point: players are falling through the cracks in the testing process. It would be impossible to guess how many players are using PEDs and not being picked up by the testing process, but if there are 10-15 players on the Biogenesis list who never failed a test and did use drugs, it is a relatively safe assumption that the true number of players who used PEDs and tested negative is higher.

This point is a significant one, yet seems to be lost to many in the heat of the moment. If you believe that Anthony Bosch and his cronies deserve the benefit of the doubt and are telling the truth, the testing system is a failure. Of course, the leap for some is not that the testing process needs to be reviewed and fixed or overhauled but that this means that MLB should conduct investigations like the one they are conducting now.

This leads to the second potential problem with this avenue of suspensions. While baseball has the contractual right to conduct these investigations according to the collective bargaining agreement (CBA) and the joint drug agreement (JDA), should they be in the business of conducting these investigations? This is another question that has been swept under the rug on this day of celebratory high fives and backslaps, but one that perhaps shouldn't be. There are several potential issues with this investigation and in particular with this type of investigation:

• Anthony Bosch lied: In April, Bosch denied supplying PEDs to MLB players. In June, Bosch changed his tune. If you are willing to give Bosch the benefit of the doubt in June, then he lied in April. If he was telling the truth in April, he lied in June. Either way, at some point Anthony Bosch was lying.
• Anthony Bosch is under duress: Bosch didn't merely change his tune because he felt bad about the rampant use of steroids in MLB and had an honorable interest in doing the right thing. Bosch's abrupt turn came because he was facing a lawsuit from MLB. The league agreed to drop the lawsuit against Bosch in exchange for his testimony. Whether Bosch’s testimony is legitimate or not, it is difficult to view his testimony as lacking in self-interest.
• Anthony Bosch may have broken the law: It is possible that Bosch broke state and/or federal statutes regarding the sale and dispensing of medications off label.

This last point is not a trivial one but one that the vast majority of the scribes are all too willing to overlook and sweep under the rug in order to fit the going narrative. It is possible that Bosch may have dispensed medications to elderly or infirm patients off label that may have put their lives at risk; of course, it is also possible that he did not. I have absolutely no way of knowing and, again, am not suggesting that Bosch broke any laws without additional information. The larger point is that dispensing medications off label is dangerous, and a much more significant legal and societal issue than baseball players taking steroids. If Bosch broke state or federal laws, he should be investigated by state or federal law enforcement agencies, not by MLB. This seems intuitive and sensible, yet has been lost in a wave of hysteria.

It is easy on days like this to triumphantly crow from the rooftops that MLB scored a victory. But this is a narrow viewpoint and possibly a naive one. The fact that MLB has resorted to this avenue of investigation to obtain suspensions should be seen as a failure of the testing process that the MLBPA and MLB jointly agreed to implement.

An even more naive viewpoint is the one that using people like Bosch to obtain suspensions will do something significant to curb the distribution of PEDs off label. Whether it is part of a law enforcement effort or a concerted audit program on the part of health care agencies, attacking the root of the problem has been a far more effective approach historically. Suspending Braun while Bosch walks away scot free is a wonderful way to warm our virtuous insides but does little if anything to alleviate the root cause of PED use, ignores the larger issues, and possibly tramples on the larger rule of law.

For some, Braun's suspension and the subsequent suspensions that will certainly follow in the coming days and weeks will be viewed as a triumph. In reality, this path reveals several warts on a flawed process. If there is going to be a testing process, that needs to be allowed to work in order to provide the clearest, least ambiguous picture of who is and is not breaking MLBs rules. MLB should also work in concert with law enforcement agencies in the interest of investigating doctors like Bosch and - when applicable - bringing them to justice. This end around of the agreed upon testing program may bring suspensions but fails to deliver definitive proof through a positive drug test and fails to get rid of the sources of the dirty drugs that are tarnishing the game. If baseball is serious about curbing or eliminating PED use, there is a lot of work that needs to be done, and these suspensions do little to address or mitigate the flaws that this investigatory process has exposed.