What does the situation of Milwaukee Brewer and National League MVP Ryan Braun say about drug testing and labor arbitration? Last October 1, Braun “failed” a drug test by scoring elevated levels of synthetic testosterone, an indicator used by Major League Baseball of use of performance enhancing drugs. He was suspended for 50 games.
Braun was covered by a collective bargaining agreement which required, among other things, a strict protocol for collection of drug testing samples. It also required arbitration of any disputes over the results of testing. His case went before a panel of three arbitrators, including a neutral party, Shyam Das. On February 23, 2012, media sources reported that the panel ruled 2-1 that the chain of custody of the sample was broken for two days – reports suggest that the collector took the sample home and left it in his home refrigerator, rather than shipping it immediately to the doping lab—and that Braun therefore need not serve his suspension. We say, “media sources” because the award has not been published. It has been assumed that Das broke the tie between union-appointed and management-appointed arbitrators. MLB has said publicly it “vehemently” disagrees with the decision.
Media speculation turned almost at once to whether MLB would “appeal” the award to federal court under the Federal Arbitration Act. This reporting is a misnomer – there is no appeal from arbitration – and the Act cited is only one of two that apply. Because the contract here is a collective bargaining agreement, the substantive law applied is federal labor law developed under the Labor Management Relations Act – the same law that governs arbitration under most other union contracts in the private sector outside of the railway and airline industries, which have their own law. It’s the connection to collective bargaining that makes this case literally a federal case. The Federal Arbitration Act is merely a procedural vehicle.
We know very little about the facts, other than what has been leaked to the media. If it is true that the chain of custody was broken, the decision to overturn the suspension would not be unusual. For forty years, arbitrators have been overturning alcohol and drug tests because samples were taken home by a supervisor, see Holliston Mills, 60 LA 1030 (Simon 1973)(alcohol testing sample), or the security of the sample may otherwise have been compromised. See Day & Zimmermann, 88 LA 1001 (Heinsz 1987)(discharge for a positive drug test reversed because there was “scant” evidence of collection and chain of custody). Of course, this result is how the system is supposed to work: Federal regulations used in transportation and nuclear power facilities have comparable requirements, and the parties inserted a strict chain of custody into their CBA. The point of such a procedure is that if it is not followed, then the results are not trustworthy. If they’re not trustworthy, they can’t be a just basis for punishment.
The case may not mean anything anyway. The typical drug testing case in private industry is about one or more illegal drugs. These drugs have specific by-products, called metabolites, which are associated only with the illegal substance. Find the metabolite in a valid test, and a very strong presumption is raised that the employee must have used the illegal drug. Testosterone is a hormone found at some level in all humans. Elevated levels might be explained in any number of ways. We can’t really know what Braun might have said was the reason for his test result, assuming it really was his test result. MLB didn’t get to first base in this case.
The threat to try to overturn the arbitration award in court would then be hollow: The U. S. Supreme Court has held as a matter of federal labor law that an arbitrator’s decision is final unless there is some corruption or fraud, or the arbitrator was not truly neutral, or the decision was not grounded in the agreement. That the arbitrator made an incorrect decision on the facts or the law, however, is not a basis for overturning an award. So long as the arbitrator was trying to render a decision based upon the contract, it doesn’t matter that he made a complete hash out of the job. In Paperworkers v. Misco Inc., 484 U.S. 29 (1987), the Supreme Court said that "Courts thus do not sit to hear claims of factual or legal error by an arbitrator” and “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” So the Das award will stand if the only challenge to it is that the arbitrator misconstrued the chain of custody provisions.
That brings us back to the question we posed at the outset: Is this story about performance drugs, or arbitration? The answer is neither, based upon what we can glean from the media leaks. The Das award is equally valid whether Braun is guilty or not. Chain of custody provisions are designed to protect employees from arbitrary action by management, by requiring that a career-damaging or –ending verdict of drug abuse is not based on a spoiled or tampered sample. Inherent in this requirement is the possibility that a guilty person might be exonerated because the collector screws up the process. The award does not attempt to resolve the question of guilt or innocence.
The story is also not about arbitration. The Misco case we quoted above is nothing new. The standard for review of arbitration awards has been basically unchanged since 1960, when deference to an arbitrator was announced in three cases now known as “the Steelworkers Trilogy.” The loser is always disappointed, and although it is bad form, a little grumbling that the loser will “appeal” a non-appealable case is quite common. In other words, it’s not news.
Why then all the hubbub about Ryan Braun? It’s because he’s a celebrity. Celebrities make the front page for doing ordinary things that don’t make headlines for ordinary people. Stories of workers who flunk tests and beat the test because there was an error in the testing process are old news. They’re just not headline news. So move along from Ryan Braun: There’s nothing to see here.
