Friday, February 24, 2012

A Legal Take on Ryan Braun

A Legal Take on Ryan Braun

by Norm Kent

Vice President, National Organization for the Reform of Marijuana Laws

After being exonerated by major league baseball yesterday from his potential suspension, Ryan Braun owes all fantasy baseball players an apology.

In his press release acknowledging the support he had from his family and friends, he forgot to thank all those early-drafting fantasy players who stood by him and selected him in the top 20 picks. After all, as the NL MVP he was one of baseball's best players in 2011.

But now let me speak as a constitutional rights lawyer. Neither a technicality nor a loophole today freed Ryan Braun from a 50 game suspension. What saved Braun today was the fact that we leave in a society which is supposed to preserve due process, insure fairness, and honor agreements protecting the rights of employees. Baseball is no different. Players are very well paid obviously, but as Curt Flood, challenging baseball's free agency system years ago once stated, 'A high paid slave is still a slave.'

Today, baseball players are hardly slaves. Free agency has given them vast negotiating rights, but that does not change the fact that drug testing procedures in America are inherently flawed. Every day, using a substantially compromised field test, cops arrest innocent people for purportedly carrying contraband that turns out not to be so. The list and litany of false positives could and do fill a book, and I cite a few examples in a link at the bottom of the page. Beware of Dr. Bronner's natural, herbal, liquid soaps. They could put you in jail.

Nevertheless, in this era of steroids and performance enhancing drugs, major league baseball players and its management negotiated drug-testing protocols to insure the integrity of the game and trust of its fan base. However, as lawyers for the players sat down to work out the drug testing initiatives, it was imperative that mechanisms and processes be implemented that would insure the integrity of drug testing and fairness for both sides.

Scientists and lawyers had seen for years a panoply of poorly administered procedures which compromised the accuracy of results. These included a variety of situations, from not properly storing drug specimens at specific temperatures, to failing to initiate a timely testing of the sample. The reason meticulous guidelines and standards were imposed for all drug testing was because the failure to do so would render the test inherently unreliable, and could very well lead to false positives wrongly accusing an otherwise innocent individual.

The issue today with Ryan Braun is apparently chain-of-custody, but the reason chain-of-custody is critical is because the failure to preserve it exactly could potentially compromise the integrity of the test. That is why the failure to safeguard chain of custody was negotiated as a material factor in relying upon a drug test in the first place- because there is a history of insanely false positives when chain-of-custody protocols are not exactingly followed, or the specimens are not tracked thoroughly.

As the Ryan Braun case unfolds, it appears those procedures, agreed upon in writing by major league baseball and the players’ association, were not followed. He was ‘acquitted’ of wrongdoing not by a technicality. He was ‘acquitted’ of wrongdoing because of the wrongdoing by major league baseball operatives not abiding by the agreement they entered into.

This is not about a player getting off. This is about a contract being honored; about both parties being faithful to the rules and regulations they mutually negotiated before a player’s career could be interrupted and his reputation irreparably stained.

It is not that drug testing lost today. Fairness won. It is not a technicality that saved Ryan Braun. It is that we as a society have preserved due process, and the same procedures that have been used to affirm a dozen previous rulings on steroids, have now been applied to exonerate one. That is the way it should be when one side does not abide by its agreements. This time, it was the owners that lost, but neither did baseball win.

What won was the right of a censured athlete to argue an appeal and mandate that the landlords of the game respect the rights of its tenants pursuant to the terms of a lease they mutually negotiated beforehand.

For more information on how drug testing procedures in America are flawed, visit this article I published at It is hard to believe a bar of chocolate or some herbal incense can put you in jail, but in our Amerika, it still can.

As for Norm Kent, the fantasy baseball player, I should have known better. I should have had more faith in my own words, and drafted Ryan Braun in the freaking first round. My bad.

Sunday, February 5, 2012

Penny Leaves States; Fantasy Owners Rejoice

Bulletin: Fantasy Baseball Owners everywhere across the country celebrate as Brad Penny announces he will sign with a Japanese League Team.

Karina Smirnoff, the dancer who got engaged to MLB pitcher Brad Penny in October of 2010, has called off her engagement according to E! Online. They were supposed to get married in January.

Don’t weep for Penny, though – he’s cleared $49 million in his career, and previously dated Eliza Dushku and Alyssa Milano. I think he’ll be fine.

On January 18, 2011, Penny agreed to a one-year $3 million contract with the Detroit Tigers.[13] Being added to the Tigers roster reunited Penny with past teammates in Miguel Cabrera from the Marlins and Victor Martinez from the Red Sox.

Penny started off the season with the Tigers as their number two starter, behind Justin Verlander and in front of Max Scherzer. In exception to May, in which Penny went 3-1 in five starts with an ERA of 3.24, Penny had a sub-par first half of the season, going 6-6 with an 4.50 ERA, and with the Tigers' acquisition of Doug Fister in July, in addition to the success of Scherzer, Penny was moved to the number four spot in the rotation. Penny had a worse second half, going 5-5 with a 6.53 ERA after the All-Star break.

When the Tigers went to the Postseason, he was added to the roster in the bullpen. He appeared in Game 6 of the American League Championship Series against the Texas Rangers, his only appearance in both the Division and Championship series, and pitched 1.2 innings while giving up 5 runs. The Tigers went on to lose that game 15-5, which sent the Rangers to the World Series. The Rangers lost in 7 games to Penny's former club, the St. Louis Cardinals.

On Feburary 5, 2012, Penny agreed to a one-year $3 million contract with the Fukuoka SoftBank Hawks.

Saturday, February 4, 2012

National Fantasy Championship Mania Commences

by Norm Kent

A few weeks into the return of the National Fantasy Baseball Championship leagues online and I have already witnessed manic behavior. It is still snowing in Wisconsin, tarps cover every spring training field, and the Super Bowl is not until this weekend, but the NFBC has already trotted out onto the field 31 slow draft leagues with approximately 450 participants.

The NFBC Administrators probably thought they would get about 10 or 15 leagues, but by the time the season starts there will probably be over 50 at three different price ranges, $150, $375, and $1000. The participants in these leagues, myself included, are either addicted warriors, gypsy fortune tellers, or true men of courage. Here you are, in the winter, rostering a permanent team to win a fantasy crown before a single major league player has showed up at a spring camp and put his jock strap on.

The slow draft phenomenon requires the contestant to choose 50 players that will comprise your team for the entire season. You may be able to move players up and down within your own rostered selections, from active to inactive, but there is no trading and no free agency. What you pick is what you get. You may grab a top flight pick in a top round and find out you are out of the race before the season even starts if the dude blows an Achilles or pops a shoulder in the spring. As an attorney, I represent psychics, but I am not one. How do you call whether a guy is going to go Buster Posey on you? Who is the next five- star athlete that is going to lose a third of a season for testing positive on steroids, relapsing on alcohol, or driving drunk into a tree?

The exciting part of entering a couple of these drafts so far is not only the number of enthusiastic owners, it is their unadulterated enthusiasm. The fantasy buffs might as well be in rehab clinics. They are ‘jonesing’ for baseball. The drafts have started, but they are just not going fast enough for everyone to be happy. Too many of the ‘slow drafts,’ with owners residing on the west and east coast, are going ‘too slow,’ and the owners are complaining on the NFBC message boards about other owners who “lack draft etiquette.”

In one league I am in, an ER doctor who works as a thoracic surgeon found himself defensively explaining to the league why it might take him a few hours in the middle of the afternoon to make some picks. He thought the patient rather than the pick came first. Shame on you, Dr. Sheppherd.

“Pathetic,” one owner referenced my delay on Friday afternoon, while I was in Federal District Court representing a man facing 25 years in jail- mind you, a court where lawyers are not even allowed to carry in cell phones. I will be sure to let a judge in the United States District Court of Appeals know that his tardiness held up my fantasy baseball pick.

Whew, these NFBC’ers are a tough crowd. They remind me of the humorist Dave Barry’s hilarious line that a “woman, given a chance to catch a fly ball or save her infant son’s life, will invariably choose the child without even considering that runners are on base in scoring position.”

The NFBC administrators know how the world of fantasy has gone from a passing fancy to a cult industry. They sponsor everything from one hundred dollar online satellite leagues to the ‘Main Event,’ national auctions every spring in Vegas and five other cities around the nation. It’s our own ‘Thriller in Manila,’ and you can just hear Howard Cossell announcing, from his grave, “Down Goes Posey. Down Goes Posey.” And with those words, your catching slot is left without hits, runs, and rbi’s for four months.

In order to appease the zealous, indeed ravenous, appetite of our participants, NFBC administrators have now launched a ‘Fast Slow Draft,’ so all 50 rounds can be done in one 8 hour window. That sold out, and another will begin soon. The slow draft provides you with an 8 hour window to make your selection, but with options available to queue up your selections, and even limit those to one round, owners who do not do so are still getting berated and abused on their draft message boards. I think they are sent to a Fantasy Flogging Camp. It’s run by a sadist named Berger of Fullerton, who says if you do not make your pick within his mandated minute, you will be severely beaten or lose your first born.

Today, some chat on the NFBC Board is calling for the administrator to create the ‘slow’ drafts based on east or west coast residencies so the time zones are aligned and the picks will be made more quickly. There is no time for leisure with this fast-paced crowd. They want the season to start tomorrow.

I will offer one suggestion if you opt in and your time is limited. The NFBC, using the snake draft concept, offers its owners an opportunity to claim a drafting position. If you are saddled with multiple other responsibilities, a swing slot position might be best for you, so that you can quickly make two choices and have a long break in between. Go for an early or late round slot, so while maybe you get a number 13 or 14 pick, your wrap around time for another choice is limited only by the 14th or 15th player. First, you won’t have to keep other owners waiting as long, and the chances are you will have queued up and been able to secure your back to back selections pretty rapidly.

The irony of these slow drafts is that for all the prognosticators picking optimistically in January, there is going to be a player on a major league roster in the middle of 2012 who will become this year’s Ryan Vogelsong- an all-star probably not listed on a single NFBC roster. Maybe I should take Manny Ramirez in Round 25. Wait, let me see, maybe Ken Oberkfell is making a comeback too. There is always an unknown joker in the deck.

The conceptual purpose of a slow draft was to allow us to watch emerging trends and gain insight into average draft positions as the 2012 season unfolds. I thought it would provide some guidance on hot athletes going early, injured athletes moving down the charts, or how NFBC vets would look at veterans. Sure enough, there is a lot to be learned, and some significant points are worth recording. Here are a couple of things that I have preliminarily noticed, and let me wrap up this column talking about the draft instead of the drafters.

First, it’s the riskiest position on the board, but in league after league, star catchers are getting called up early, even though their overall stats don’t warrant it. Teams just want to lock up the category rather than lose it altogether. There is a desperate need to have at least one Matt Wieters on your team and not wind up with Rod Barajas.

Second, there are very few players putting up 40 or more steals, and speedsters, though punch and judy hitters, are getting tapped sooner rather than later. No one wants to make Brett Gardner a 6th round pick, but if you need to put 50 steals on the board and wait any longer, you have no guarantees. So rookies like Dee Gordon are soaring in their average draft positions, (adp) and if you wait too long, you will have waited… too long.

Third, guys that are veterans are being totally dissed in ADPs, whether it is Ichiro after one ‘bad’ season at age 38, or Chipper, who in a typical injury-riddled year, posted 18 homers, 75 rbis, and a .275 average at the coveted third base slot. With the number of corner guys that got hurt last year and the number of second sackers, like Kipnis and Ackley, emerging, there has been a seismic shift in drafting priorities by NFBC members. No one is panicking if they don’t wind up with a Cano or Pedroia. There are other places to go in the middle infield. It was a point made by NFBC founder Greg Ambrosius in a Baseball HQ column not too long ago, and I think owners are taking it to heart.

Fourth, while no one seems to think Ryan Howard is going to come back strong from his Achilles blow out, people are not discounting Josh Johnson, Ryan Braun, or David Wright. Risking an early pick on players with real questions may be deemed gutsy or foolish, especially this early in January, but teams are rolling the dice on the real rewards a resurgent star might bring, whether it is the guys above or a Jason Heyward who was supposed to become Bo Jackson.

Fifth, as these leagues move into the later rounds, the most sophisticated owners are going to emerge. This is clearly the kind of league where you not only have to know a team’s depth, you had best know not only their prospective lineups, but likely callups and backups. Your team is in a marathon, and because your selections are finite and irreplaceable, I have to believe teams reaching for the stars rather than relying on the veterans are going to hurt more and score less. For every Pablo Sandoval rocking a corner slot, there are ten more Andy Martes that did not. You know that Mark Buehrle is going to throw 150 innings and get a dozen wins. You can’t really say that about most late round starters.

I am already in two slow drafts and about to enter a third ‘fast slow’ draft that will make all our picks on Sunday, February 19, for a team that is going to play through October 1. I represent fortune tellers, but I am not one. Maybe I can use one to be a co-owner, because if I was sure today of what was going to be tomorrow, I would probably be buying Facebook stock instead of stocking up on fantasy players.