Ryan Braun Situation Makes for Interesting Case Study

Nick Fishman

It was announced in December that Major League Baseball’s reigning Most Valuable Player (MVP), Ryan Braun of the Milwaukee Brewers, tested positive for performance enhancing drugs (PED’s).  Public reaction was split between cynical baseball fans who believe that everyone is cheating and those that thought Braun, a player know for his squeaky image, was the last person this could happen to.  Now, due to recent developments, this story has exploded.

As league rules called for, Braun was suspended for 50 games (nearly a third of the baseball season) for failing a drug test.  Like most, if not all players that have gotten caught, Braun swore he was innocent and appealed the results.  His representatives defended him vigorously in the court of public opinion asserting that the level of PED’s found in Braun’s urine were unprecedented and that the test had to have been flawed.

It is important to note that MLB has never overturned a positive drug test.  Well, there’s a first time for everything.  Last week, in a 2-1 arbitration ruling, Braun’s test results were thrown out on a clear technicality.

Here’s where it gets interesting.  Braun and his representatives have been extremely vocal since the ruling claiming that this judgment vindicates him and indicts MLB for their testing procedures.  Rather than just let Braun chirp, MLB decided to take their case public which they are not necessarily known for doing.  They are emphatic that Braun got off on a technicality and that he did, in fact, have those drugs in his system; an opinion held by a cadre of baseball pundits, attorneys and the media.   And for the most part, the public seem to agree.

So why am I writing about this?

It really seems clear at this point, that Braun was guilty of taking PED’s and got off anyway.  And as I think about this story, I can’t help but correlate this to a scenario employers face everyday; Arrest Records.  In this case, I’m going to liken the positive test as an arrest record and the arbitrator’s ruling as a non-conviction.

What’s an employer to do?  Say that Braun decided to hang up his cleats and look for a job.  Everybody knows about the “arrest” and if they didn’t, they’d find it if they performed a comprehensive background check.

Here’s the answer.

If before Braun’s appeal was heard, the employer is able to make a judgment call about whether they believe Braun is innocent or guilty and if they think he is guilty, determine his hiring eligibility based on the behavior he is charged with.

However, once the case was thrown out (technicality or not), the record is a clear non-conviction which cannot be factored into the hiring decision.  Doing otherwise would certainly raise the concerns of both federal and state regulators (for instance, see the Pepsi Case).

The bottom line is that employers need to be careful when it comes to the use of arrest records. The first step is to determine if it is a pending case or if it is a non-conviction.  If it’s a non-conviction, there is no decision to be made. You can’t consider it.  If it is a pending charge, you must ask yourself the question raised above and make your decision from there. We would also advise that you speak with your counsel prior to taking any adverse action when it comes to arrest records.

(The other bottom line is that Ryan Braun is guilty as sin:))

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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  • Can’t blame the guy. If you are guilty, and you know you are guilty, you have nothing to lose by fighting it.