Did Ryan Braun get off on a technicality?

No.

Unfortunately, I have to explain that. A point that is under-reported can be summed up this way: Braun’s defense team provided the exact information about what happened to the sample from the time it was given to when it was tested. As defense teams do, they repeated the process. Yes, they took urine from Braun, repeated the conditions and guess what? They got the same result.

When people talk about the “loophole,” they seem to be describing the chain of ownership of the sample. But the sample was never lost, misplaced, or visiting with Jimmy Hoffa for any period of time. The location of the sample is accounted for at all times.

The problem is that, for some reason, the sample was contaminated by the condition it was stored. This is not a legal loophole, but a serious and repeatable problem specific to this case. If you take Braun’s urine and repeat the steps, you get the same result.

This, is of course, why the procedure needs to be followed preciously. If you have a recipe and decide to not follow it, you’ll get something that is almost, but not quite, entirely unlike what the recipe is supposed to make.

The questions I have are:

{exp:list_maker}Why was a sample where the proper procedures were NOT followed even tested? Procedures are in place for a reason, specifically to avoid a questionable result.

Why was this information leaked, and by whom? Baseball has had two major leaks related to drug testing in 2003 and in this case. {/exp:list_maker}
I think the first question is the most important. Braun didn’t get off on a technicality. This is also the reason why MLB, although vocal, probably will not appeal the results. They are not going to put their testing procedures, and their ability to follow them, up to close scrutiny.

Once again, reporters, faced with a PEDs related story, dropped the ball completely. Few are reporting why Braun really was absolved of this charge. Instead, the tone is more like Jeff Passan’s:

Make no mistake: This was a technicality. It was a loophole. Most of all, it was brilliant lawyering by Braun’s attorneys. Hundreds of tests had been handled in exactly the same manner in baseball and never before had the players’ union protested their accuracy. Sources from MLB and the union told Yahoo! Sports the chain-of-custody section of the joint-drug agreement is likely to be rewritten to ensure that a defense similar to Braun’s would have no legs. Because even some inside baseball who should be on Braun’s side – players, agents and other officials – see his prevailing as a Pyrrhic victory.

Which is completely wrong. But the MSM being wrong about PEDs is the default standard, designed to enrage and sell papers instead of report what actually happened.

The problem isn’t that chain-of-custody. The problem is that while in the chain of custody, a procedure was not followed (and hence, this wasn’t like the hundreds of other tests). It was shown that deviation from the procedure caused the results that triggered this.

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Comments

  1. Greg Simons said...

    Mat, I heard an interview with Will Carroll that used this same explanation.  What I don’t understand is, if the second test showed the same result, how does this prove – or even suggest – Braun’s innocence?  I must be missing something, because this result would only seem to reinforce his guilt.

  2. DBH said...

    Did the defense team test the sample as it should have been tested and receive clean results?  If not, they simply used a sleight of hand to make it seem as though the results were created by the conditions to which the sample was subjected.  I agree with Mr. Simons.  I am not ready to dismiss this as Braun getting of on the basis of a technicality, as I am not ready to indict him for using PEDs.  Unfortunately, this is another sad situation, whether it is PED use by the reigning MVP or faulty collection procedures that falsely indict a player, that has occurred under the captaincy of Bud Selig.

  3. Brian Q. Lehmann said...

    You seem to be taking what the defense team says as gospel truth. But in order to believe that (and your article is the first time I’ve heard about this experiment you mention in the first paragraph), Braun has some crazily unique urine that inexplicably creates testosterone when left alone for two days.

    Mat, is that actually what you’re saying the defense team is maintaining? And you actually believe them?

  4. Brad Johnson said...

    Greg,

    If they wanted to prove innocence, they would gather a sample from Braun, split it into two units, test one immediately/correctly and one under the specific conditions in question. If the first sample is clean and the second is dirty, then poof, you have proof.

    I don’t know if this is what Braun did or not. If it had been, I can’t imagine anyone “vehemently disagreeing” as that’s pretty strong evidence.

  5. evo34 said...

    You cannot generate testosterone in a liquid by storing it improperly.  Any more than you can generate blood spatter on a white Bronco, containing an innocent suspect’s DNA.  Braun is 100% guilty.

  6. Mat Kovach said...

    @Greg
    The second test, was actually the B sample, taken and stored the same way.

    The drug test work this way

    Split the sample into A and B.

    Test A. This test is a basic test that looks for various indicators. If this shows up then Test B for with specific (and costly) tests.

    Basically the A sample is looking for triggers to cause the B sample to get further test.

    I have not read or heard about MLB keeping yet another sample for retesting, so there isn’t another “sample” to test.

    Now it is reported that right after being told of the failed test, Braun took several independent drug test with various agencies and he was clean. This was about 2-3 weeks after the first test that trigger the events.

    Without knowing the ratio that Braun’s A sample had that triggered the testing of the B sample (well, it had to be testosterone/epitestosterone level of 4:1, that triggers the B sample test), we can’t say if 3 weeks was enough time to reduce it.

    So, long way around .. they don’t have a second set to retest. Bet here again, if the second sample was treated the same way, it would of had the same results.

  7. David Pinto said...

    Does epitestosterone degrade faster than testosterone?  If so, I can see how the sample sitting around for a couple of days might cause a high reading, and a positive test.  If not, I’m not sure how letting the sample sit would cause that.

  8. Greg Simons said...

    First, to be clear, I’m not trying to conduct a witch hunt of Braun.  I’m trying to gain clarification of what the defense did, and I’m still not sure.

    Brad’s explanation sounds reasonable, but as he said, it’s unknown if that’s what happened.  And I agree with him that it’s difficult to see how MLB would “vehemently disagree” with the outcome if this really is what happened.

    The independent testing 2-3 weeks later tells me little to nothing.

  9. Mat Kovach said...

    @Brian

    I spent about 3 years working in the research area for a chemical company. I’ve seen (and experienced) what can happen chemically when chemicals are not stored properly. There is a reason the testing procedure is designed the way it is, to not allow this type of thing to happen.

    We don’t know what type, if any, medication Braun was on. I’m sure we was taking something, something like Advil, along with supplements suggested by the team trainer, etc. near the end of the baseball season.

    Without know exactly what was in his system, we don’t know how that was going to intermix with the rest of the waste in his urine. Without know that, we don’t know how those chemicals would have reacted.

    Since urine contains the toxins your kidney clean up, there can be a fun bit of chemicals in there.

    http://www.ivy-rose.co.uk/HumanBody/Urinary/Urinary_System_Composition_Urine.php

  10. Mat Kovach said...

    @Greg

    What the defense did .. from my understanding is exactly what MLB did.

    Took Braun’s urine (with what ever what of might been in his system at the time) stored it the way the courier did. (Just call it the Braun ReciPEE).

    When they “cooked” the Braun ReciPEE, they got the same results the MLB did. As a control, the tested the urine FIRST, then cooked it, and showed that in cooking Braun ReciPEE, it caused the results the MLB got.

    Hence, the proved that a clean sample that did not follow the procedure would give an inaccurate result.

    MLB has to “disagree” with the result because the accepted the sample. If they start acknowledging that there are times they accept samples that could be tainted because procedures aren’t followed, they open themselves up on many different fronts.

  11. Greg Simons said...

    @Mat – Okay, that makes sense.  Previous explanations left out the part where they got a clean test with the “pre-cooked” urine.  (Man, that sounds so gross.)

  12. cyclones said...

    Why wouldn’t Braun have harped on this at his press conference? The media would have been all over it had he pressed the angle. Then we’d have experts weighing in and would know WTF we’re talking about.

  13. cyclones said...

    Also, the premise of this post is that supposed scientific testing carried out by a supremely interested party under god knows what circumstances with results seen/reviewed by no qualified observer = hard evidence.

  14. Mat Kovach said...

    @cyclones

    The most important point is that this proved that the data was bad and in reality, can not be used to prove if somebody is innocent or not. We don’t know if a “dirty” sample would exhibit the same effects.

    Braun’s team didn’t really address if he was guilty or not, just that this evidence could not be used to determine it. In Braun’s has passed his other test, so his innocence is implied (just like everybody else that passed a test).

    I also think the point wasn’t pressed since it really puts the MLB in a bad light. Why harp on the problems in the testing procedure? It doesn’t serve a purpose and if you take my first point, doesn’t prove innocence either.

    I think Braun did the right thing in basically saying, “I won my appeal because we showed that data wasn’t good. Let’s move on.”

  15. Mat Kovach said...

    @cyclones

    Calling Shyam Das on unqualified person is, well, rather insulting.

    Check out his qualifications:

    http://www.nmb.gov/arbitrator-resumes/das-shyam_res.pdf

    Das has been MLB independent arbitrator for over a decade. You comment is completely unwarranted. MLB, who disagrees with him, is not calling his qualifications into question.

    It also show you lack of understanding of the appeal process.

  16. the real neal said...

    Mat,

    You seem to be fabricating a lot of “evidence”.  Instead of saying things like “What the defense did .. from my understanding is exactly what MLB did.”, can you provide a source for this?

    The sample collecter said roughly “I thought the sample would be better off in my fridge than in a mail box for 36 hours.”  You say that the Braun’s team took two samples, left one at, let’s say 80 degrees farenheit for 60 hours, and put one in fridge for 36 of those 60 hours, tested them and the one in the fridge had a ratio that lead to further testing and they found a high level of artificial testosterone in that sample?

    It’s really amazing that this hasn’t happened hundreds of times over the last 15 years.

    “On May 20, 2010, after almost four years of contesting the allegations against him, Landis admitted to continual doping…”

    His defense, it should be noted, was about the same as Braun’s.

  17. Todd Boss said...

    Mat; What is your source for this statement?  I havn’t see a single story that says what you are saying.

    And that’s important, because I think a LOT of the outrage over Braun would disappear if someone showed that, if I’m reading your story correctly, any old person could take their own urine, store it in the same fashion that the collector did, then test it a few days later and show it to have 30:1 testosterone levels (or whatever the elevation was).

    If that was the true story … then why isn’t that the narrative that Braun and his lawyers are taking?  Because that would eliminate the whole “he got off on a technicality” issue; the narrative would be “he got off because his sample was tainted.”

  18. Greg Simons said...

    Pete Rose lied about betting on baseball for,  what, 15 years before coming clean?

    However, accused murderers have “confessed” to crimes after 15-plus hour interrogations.

    Landis and Braun are both pro athletes accused of cheating.  Guilt by association is not enough to convict someone.  Let’s not bring McCarthyism back.

    Braun may be innocent or guilty, but all I know is that I don’t know.

  19. Hunter said...

    I suppose it depends what one’s definition of technicality is.  To me, getting off on a technicality indicates that the accused probably would have been guilty had not a procedural error occurred…which I believe happened here.

    Now, if it was more than a procedural error, please tell me how.  From my reading, no one has proposed any credible alternative theory as to how testosterone levels in a sealed urine sample spike in a refrigerator, to produce sky high levels of synthetic testosterone when tested.

    I have surmised the reason that hasn’t been explained in a logical manner is because it cannot happen, but as soon as someone develops a credible explanation, I would love to hear it.  And I will change my opinion that he got off on a technicality (if anyone cares….I’m assuming Braun does not.)

  20. Mat Kovach said...

    @the real neil

    Landis defense was completely different. He said that it was a false positive. Braun’s defense said, that yes, the result of the test were correct.

    While it may SOUND like a subtle difference, it is actually a very big difference. At no time did Braun’s team say the information MLB had was wrong. The questioned the integrity of the sample. There is no comparison to Landis. (Although, there is a interesting piece about Landis here: http://www.tomsarazac.com/tom/opinions/testosterone_d13C.html).

    Will Carroll has discussed the same thing that I have and that has correlated with some of the things I have heard from folks I talk to.

    ESPN has a bit of more info also (http://espn.go.com/espn/otl/story/_/page/OTL-Ryan-Braun/ryan-braun-defense-raises-more-questions-doping-experts)

    We can’t know for sure, as the appeal process is private.

    They only reason we know about this now is because the information was leaked.

    We do not know about the evidence presented at any other appeal, in the major or minor leagues. We are not aware if this situation (the delay in sending the sample) has happened before. We don’t know what type of drug it is claimed showed up in the testing.

    To be honest, the only reason we know that nobody has won an appeal is because we were told. This information is not public, but held by MLB and MLBPA. We can’t say if this defense has been tried before and been unsuccessful.

    But, as part of the appeal process, Braun was given the evidence against them. Since the chain of custody was not broken, the location of the sample was always know. Any laboratory is going to be able to duplicate what happen to the sample during that time.

    Das’ written report, if made available to the public, won’t be out for about a month. If made available, we’ll certainly learn more.

    But, once again, this doesn’t say anything about Braun’s innocent or guilt.

  21. Mat Kovach said...

    http://www.chadmoriyama.com/2012/02/ryan-braun-what-you-dont-know-about-his-case-is-important/

    Note: There is also a link to a Kindle article by Will Carroll. It cost $0.99. This is a warning, I’m not trying to advertise for him.

    A technicality is not when the sole piece of evidence is determine to be unreliable.

    One reason it would be hard to replicate is that it would require knowing a bit of Braun’s medical history. Since his urine is going to be effect by what is body expels, one would need to info a relative good medical history on him. MLB and his defense team had that, I doubt he’ll give it to anybody else to prove a point.

  22. cyclones said...

    @mat

    I don’t understand either other of your responses to my comments.

    In his press conference Braun focused on chain-of-custody issues to imply his sample must have been tampered with. Why do this, If his lawyers have “proven” the issue was not chain-of-custody at all, but rather the transformation of his urine under X conditions?

    More importantly, why in the world are you taking it for granted that Braun’s lawyers are telling the truth? For their theory to hold water they would need to perform an accurate, unbiased test of the urine, and that test would have to be studied and confirmed by qualified experts? Has this happened?

    You say I called the arbitrator unqualified. No I didn’t. The arbitrator ruled as he did, as I understand it, because MLB broke procedures. I support his ruling. This is a completely different issue than whether urine can indeed appear to triple its testerone content if left alone too long before testing. That’s what we’re debating—or rather should be.

     

     

    damning

  23. Mat Kovach said...

    You say I called the arbitrator unqualified. No I didn’t.

    “…what circumstances with results seen/reviewed by no qualified observer = hard evidence … “

    Which is what I replied to.

  24. cyclones said...

    @mat

    The arbitrator wasn’t tasked with weighing in on that issue. The arbitrator—from everything I’ve read—ruled that MLB broke procedures. Reasonably, he therefore overturned the suspension.

    He did not rule that Braun did not use steroids; he did not rule that Braun’s urine appears to have transformed itself under x conditions. The qualified expert I’d like to hear from is the one who would study that claim and evaluate that claim.

    Until then I just don’t see why you took this contention of Braun’s lawyers as the premise of your article, as a given.

  25. James said...

    @Mat
    I followed your link to the Espn story, and in the first two mintutes they refute the idea that anyone successfully argued the sample contents were actually affected by the procedures. Right around the 2min mark TJ specifically says that the guy who practically invented modern drug testing says that the sample could NOT have created the testosterone during the storage period.

    I think we all should admit that only Ryan Braun knows if he is guitly, and I don’t expect him to divulge if it was true.

  26. James said...

    @Mat
    I wanna believe, but all I can find is two people and a lawyers twitter saying on Friday that they “understand” that the defense showed the arbitrator that they could reproduce the results, but by the end of the weekend many more people are saying that Brauns lawyers stricly claimed that the chain of custody/procedure breakdown was the issue.

    It may have been some lawyer spin the took hold in the hustle.

  27. James said...

    @Mat
    Last one.  The best evidence I can find the show that Braun got off on a technicality is:
    The sample tested positive for SYNTHETIC Testo.
    According to the UCLA doping expert, even if the sample magically altered itself in the sitting, the testo would have been the naturally produced kind. Only other explanation is the sample was tampered with and Synthetic T was added.
    Sorry Ryan, not buying it.

  28. Mat Kovach said...

    Here is what is stated in several reports. I think we can agree on this:

    (Note, when I say Braun, I mean himself and his defense team as the collective Braun)

    1. Braun never stated this was a false positive. He accepted the fact that the T/E ratio was 20:1 (or abouts) and that a synthetic testosterone was in found in the B sample. Hence, the accept that the T/E ratio should of triggered testing of the B sample.

    2. Braun has never said that the sample was lost. There is no chain of custody issue. The sample was never lost.

    3. Braun does not claim the sample was tainted by any other person. The same delivered undisturbed.

    4. Braun and MLB did not question that the sample taken on Oct 1, 2011 was not delivered until the afternoon of Oct 3, 2011. It should be noted that two other Brewers where also tested.

    Braun coincided that results of the test were caused not by tampering, but by the fact that the delay and not PEDs caused the results.

    Got that, with the currently accepted information, Braun’s ONLY defense was that the delay caused a breakdown of his urine to produce the results.

    According to the arbitrator, Braun present enough evidence to demonstrate that the delay caused a chemical breakdown to produce the results. This is the only way Braun was going to win.

    Now the first objection would be, well, two other Brewers did not produce the results. This is going to suggest that Braun very well could have been taking on a medication that they other players were not. This could be related to a medical issue. Braun was dealing with injuries for part of 2011 (in fact he skipped the All-Star game because of a linger calf injury). Not far off to think the team was medicating him.

    It is reasonable to think that Braun said, “The team had me on X, Y and Z.” My guess is Braun showed the following:

    - For the following reasons, I was on medication X,Y,Z which are legal and not prohibited by the CBA.

    - Here is a sample with that matches what I gave on 10/1.

    - Here is a test of that sample.

    - Here is a test of that sample after 48 hours, the time that went by on the original test.

    Doing this gave the same results as what the MLB had.

    The reason we know something like this happen is … he won his appeal.

    So, while we don’t have all the information we do know that scientifically speaking, Braun was able to prove that the delay in testing was, according to the decision, the reason for the failed test.

    What mixture in Braun urine with the delay involved broke down to cause the results? We can’t say without know his medical history.

    But we *CAN* say that he proved his case and this is unique in relation to him.

  29. cyclones said...

    @Mat

    No, not agreed. It is infinitely more likely the arbitrator ruled as he did because MLB failed to follow proper procedure, end-stop.

    There would be no earthly reason for him, having found there to have been an undue delay, to go the extra mile to evaluate that convoluted claim.

    If he in fact had ruled there had been a “chemical breakdown” in Braun’s urine, Braun would have stood up at his press conference and shouted this to the four corners. This would have essentially absolved Braun. Instead, Braun talked about chain-of-custody and implied tampering.

    Besides all this, there is the matter of the claim itself—“my urine produced its own synthetic testosterone”—appearing to have no support from people who know how this stuff works.

  30. cyclones said...

    Virtually every source has reported that MLB official policy is to bring the urine sample to FedEx immediately. This was not done. This is almost certainly why Braun won his appeal, and nothing else needed to be looked at.

  31. cyclones said...

    Last one.

    Basically, if a cop found the bloody murder weapon under my pillow. But instead of following procedure, he sealed it in a plastic bag and stored it for three days in his basement—the judge is going to throw out the weapon. The judge is NOT going to weigh in on whether the weapon was tampered with or does or does not establish my guilt. The cops effed up, so the weapon is out.

    Braun’s lawyers only needed to show that Braun’s urine was mishandled according to official guidelines—that its delivery was delayed, its refrigeration did not meet regulations, or whatever else. They don’t have to show these mistakes caused the spike in testosterone. And it seems almost certain they did not and could not show that.

    It’s called getting off on a technicality and it’s an important aspect of any fair system. It’s not to be sneered at as an outrage, but it is was it is—a technicality, not a vindication.

  32. cpebbles said...

    Please use your three years of research for a chemistry company to explain how storing Braun’s urine at room temperature (Even though most reports are that the sample was refrigerated, as is standard for all but MLB’s stupidly-worded procedure) converts a great deal of Carbon-12 in the sample to Carbon-13, as was shown in the second and definitive test done on the sample at question.

    It is utterly amazing to me how many people who should know better are repeating this physically-impossible claim that Braun’s team could not have possibly expected to get past anyone with a hint of a scientific background.

  33. Websoulsurfer said...

    I find it interesting that Passan, who has always been a PED apologist, is suddenly whining that Braun got off on a technicality.

    1st off – PASSAN WAS NOT AT THE ARBITRATION hearing. Anything he says is simply hearsay. He doesn’t actually know what went on. For Passan to attempt to say with certainty that it was strictly a technicality is a lie. He doesn’t know.

    An INDEPENDENT arbitrator cast the deciding vote and he says that Braun was not guilty of the crime of using PED. That is all anyone other than the people actually present in the room know.

    MLB made three critical mistakes in my opinion. #1 – I agree with Mat on this one – They tested the urine after the agreed upon procedures were broken by their own personnel.

    #2 – MLB leaked the results of the test knowing that all test results are supposed to be strictly private according to the CBA.

    #3 – When given the opportunity to definitively tie the samples to Braun with a DNA test, MLB not only declined, but refused.

    This was no technicality. This was a complete failure on MLB’s part to follow procedure that was agreed upon through collective bargaining. It was also a complete failure by MLB to follow common sense.

    Braun may or may not have taken PED’s, but MLB blew their chance to prosecute him for any offense completely by their own ineptitude.

  34. Greg Simons said...

    @Websoulsurfer – I haven’t heard about #3 you mentioned.  Could you provide a source for this?  Thanks.

  35. evo34 said...

    The author’s entire premise relies on the curious process of human urine breaking down into synthetic testosterone at a certain temperature.  I would assume/hope he is at least a Brewers fan.  How else can one explain the lack of logic?

  36. Steve said...

    The testosterone wasn’t elevated.  The RATIO was elevated.  So while the testosterone stayed the same, whatever base the measure it against degraded over time and caused the RATIO to come out 3x higher than any previous result.

    Learn how to read.

  37. Brad Johnson said...

    Let’s put it this way…there’s so much mis-information that I can’t support any definitive statements beyond the whole “courier didn’t follow MLB protocol” bit.

  38. Truth be told said...

    After reading shed loads of stuff on this over the last week or so (including between the lines), my feeling on this is that there are 3 pieces of circumstantial evidence (not proof) that worked to Braun’s advantage and gave the arbitrator enough doubt to rule in his favour.

    1. The samples were handled in a less than ideal manner between the time they were collected and the time they were dropped off at Fedex.

    2. (This rumour originally surfaced when the story first broke in December). The samples of the 2 Brewers players tested with Braun also showed elevated (but still legal) T:E levels.

    3. Braun’s legal team were able to re-produce the false positive as described by Will Carroll, but (and here’s the rub) MLB absolutely refused to accept this as admissible evidence, but were out-voted by Das and the MLBPA.

    That make sense to anyone else?

  39. truth be told said...

    Of course Brad, that’s the $64,000 question. One that will only be answered when (if) the arbitrators’ report becomes public.

    In the meantime, in the absence of any definitive facts that would falsify my theory, I’m rolling with it.

  40. Jeff said...

    Why are you rolling with it? It flies in the face of all logic.

    As cyclones said, if 3 was true, that would be the flag Braun would be flying to prove his innocence. He’s not, so logically its unlikely to be true.

    I also don’t get why Carroll’s anonymous sources are taken as gospel while the others are disregarded.

  41. Mat Kovach said...

    “As cyclones said, if 3 was true, that would be the flag Braun would be flying to prove his innocence. He’s not, so logically its unlikely to be true.”

    Unless MLB and the MLBPA decide to release the results, Braun can not provide proof. The ruling is confidential. Despite the previous leak, that doesn’t mean confidentially is waived.

    If you note here:

    http://mlb.mlb.com/news/article.jsp?ymd=20120223&content_id=26813960&c_id=mlb&vkey=news_mlb

    “The MLBPA took the unusual step of releasing news of Braun’s successful appeal, which under normal circumstances would have remained confidential.”

    So, even announcing decision is not a normal. It is perfectly reasonable to assume that Braun can’t really talk about exactly why he won the appeal, unless he breaks confidentiality.

    This ruling isn’t public record, so Braun is limited on what he can talk about by the process.

  42. Jeff said...

    Except he did talk about it. He talked about procedures, etc. I don’t by it that he could say and/or imply all that he has, yet not say anything about disproving the results of the test.

    To me, you are putting way to much faith in Carroll and his sources when what cyclones said is the most likely, logical scenario… that the arbitrator simply ruled in favor due to the procedural issue. And its the scenario that pretty much every source but Carroll’s says happened.

  43. truth be told said...

    Yup. That’s exactly my take Mat.

    Ryan Braun is essentially gambling that the arbitrators report will get leaked, and wants to be as far away as possible from the “scene of the crime” when it does.

    I think he wins that bet. MLB “vehemently disagreeing” with a report, then keeping it under lock and key for all eternity, is not a sustainable position. Not now. Not here in the Internet age that is the 21st. century.

  44. Mat Kovach said...

    That is also a reason why MLB will not follow through with further legal appeals, where the results will become public record.

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