What Process Is Due?


“This,” one baseball official said, “is like a criminal getting off because he wasn’t read his Miranda rights.”


Really? I don’t think so.


Ryan Braun’s successful appeal of his positive drug test is seen by many as a vindication of “due process,” leading many to suggest that Braun won on a technicality (that the chain of custody was compromised). And, if anything represents due process and technicalities in American culture it is the Miranda warning. Are technicalities a bad thing?


Of due process and technicalities:

John Heyman tweeted: “braun deserves due process and his day in court.”

The New York Times reported: “If you are struggling to feel anything other than ambivalence over Ryan Braun having his baseball drug suspension overturned on appeal, you are not alone. It was a victory only a lawyer could love. Yes, Braun gets to do his little victory dance and return to swinging for the Milwaukee Brewers’ fences because his lawyers found a loophole and drove through it.”

Ken Rosenthal wrote: “I know what some of you are thinking: Ryan Braun got off on a technicality. Baseball cut him a break. Braun should have been suspended 50 games for his positive drug test — period … It’s called due process, folks. You might not like or even trust the result. But the rules were collectively bargained.” “I’ll just say this: Braun had every right to appeal, every right to make his case. That’s how due process works.”


This is a flawed, muddled and confused way to look at what happened to Braun. This thinking trivializes the concept of due process and suggests that due process victories are often just technical wins. Both notions undermine the important concepts of due process and fairness. Due process was not what worked here. The process MLB and the players union bargained for was what worked (despite MLB’s vehement disagreement). That process just isn’t the same as “due process.”


To see what is going on here, we need to be on the same page in understanding the legal concept of “due process.” Many people think it applies to all aspects of life for Americans. We all deserve to be treated fairly in every aspect of our lives as citizens. Well, due process does not address all aspects of life. Due process only applies when the government, either the federal government or the state government, undertakes an action that impinges on an individual’s life, liberty or property. No government action, no violation of due process. While powerful, MLB is not the government. MLB can’t put Braun in jail, take away his home, or put him to death for his alleged positive drug test. In regards to Braun and his drug test, due process is not the issue. Why then, does everyone seem to think it is?


My guess is that commentators and baseball fans really think that what they are talking about is the need for a fair procedure. That is great and true and there is a legal concept called procedural fairness that does apply to private actors, like MLB. But, if you were to really look at and understand “procedural fairness” you would see that it only tangentially applies to MLB and Braun. For example, it might apply if say that MLB, without a drug testing policy agreed to by the players, suspended Braun for taking steroids.* Braun could go to court and argue to a judge that MLB’s action violated procedural fairness in his right to be employed as a baseball player. Would he win such a case? Hard to say.


That, though, is still not the case here. What makes Braun’s dealings with MLB different is that MLB and the player’s association (a union), under collective bargaining laws, agreed as part of the union contract to a process under which players would be tested for banned substances. Part of that agreement was that the process was to be secretive, it was to have certain testing criteria and procedures that were to be followed, and that if a player tested positive he had a right to appeal that result to a three person panel. That is what happened to Braun. Well, apart from the kept secret part – cough, cough, MLB.


Instead of pointing out that the process Braun was contesting was one that MLB and the players had agreed to in the CBA, the media just lumped what happened to Braun under the term “due process.” Why do we care, you say? Even after all your legal shenanigans and double speak, due process or procedural fairness or the process MLB and the union agreed to under the CBA, all three are still the same in our minds. Well, here’s my point, they shouldn’t be.


By suggesting that Braun’s due process rights were violated, commentators diminish the concept of due process. The right to a fair trial, to have a lawyer (even if you can not afford one) in a criminal prosecution, to speak your mind and not be muzzled, and to practice your religion are all important notions in our country and they can not be taken away without due process – a fair proceeding where the government is called to task. Braun’s drug test appeal is not a fundamental right and thus not afforded due process. He is, however, afforded a fair procedure as set forth in the CBA. Was the media just trying to make Braun’s case look silly by labeling it as a due process case or were they just confused. I suggest they were confused and ill informed.


Now, don’t get me wrong, I am not saying that it isn’t important for Braun to get a fair shake in his dealings with MLB, it is just that his concern does not rise to the level of a fundamental right that must be afforded due process. And, to casually throw around the term “due process” in this context is careless and undermines our legal system. Wow, that’s kinda over-the-top, don’t you think? Not really. For, unfortunately, most people don’t really understand our legal system** and know the rights it affords its citizens. And, unfortunately, many in our country gather their knowledge about things like the law from the media. That is why it is dangerous when the media presents Braun as a model for how “due process” works. When the media generalizes (and gets it wrong) about “due process” it undermines the concept.


It also appears that people are unhappy with the fact that an agreed to adversarial hearing raised concerns about the fairness of the testing procedure as it applied to Braun. The “thinking” now is that other “guilty” ballplayers can take advantage of this alleged “loophole” or technicality. MLB and fans across the country should understand that Braun’s attack on the process uncovered a flaw that may affect the reliability of the tests to which players submit. With a player’s reputation and livelihood at stake, it is important that the process the parties agreed upon be followed to the letter and that it be a pristine process. That is what was important to Braun and should be important to all ballplayers. In that regard, protecting the integrity of the system is vital. Belittling the process by suggesting the technicalities are bad is stupid. Technicalities exist so that there is less of a chance that someone will be unfairly targeted or convicted. The reason we have Miranda warnings for people is not to give people a technicality so as to avoid punishment. Rather, Miranda was designed to neutralize the distinct psychological advantages police have over suspects; Miranda is meant to level the playing field so that we avoid wherever possible coerced confessions; confessions that still happen way too often. A technicality like Miranda is a good thing. Pressing a flaw in the testing process for MLB is also a good thing. Lets not damn technicalities or belittle them.


As our parents tell us, life isn’t always fair. When your life and liberty are at stake, however, you want want both fairness and due process. Braun didn’t need due process, he just needed a fair process. Which is what he got.



*Forget for a moment that MLB and the player’s association are subject to the National Labor Relations Act.


**Iin 1991 the New York Times reported that only 33% of Americans can identify the Bill of Rights – I would suggest that number has not improved in 2012.


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