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Bill Simmons, the popular writer for ESPN.com, recently discussed the continual leaking of information regarding steroid use in baseball in the early 2000s and compared this lingering phenomenon to, among other less savory things, an automatic debit that just cannot be canceled. The description is apt for a somewhat beguiling situation that, according to a very recent decision released by the Ninth Circuit, resulted from government agents’ violation of the Fourth Amendment to the U.S. Constitution; that is, the provision against illegal search and seizure. This decision, however, might come as little recompense to such high-profile big league heavyweights such as Alex Rodriguez and Roger Clemens and, more recently, Manny Ramirez and David Ortiz, two pivotal members of the 2004 World Series Champion Red Sox team, who were all recently exposed as individuals who failed drug tests administered by Major League Baseball in 2003. With their reputations permanently sullied, the fact that the information regarding their failed drug tests should have never been accessible to government agents and, thereafter, susceptible to being leaked to the media, probably will not do a whole lot for them or their future Hall of Fame hopes.
The situation is complicated and pretty confusing to the merely casual fan primarily because, if you can believe it, Major League Baseball only implemented mandatory drug testing of its athletes with actual punishments to follow failed drug tests in November of 2003. Anabolic steroids themselves have been illegal since, at least, 1990, listed as a Class III controlled substance, on the same level as barbiturates, with possession carrying a penalty of up to a year in prison. However, although illegal, steroids were not officially banned in baseball at this time, and, without tests to determine whether or not steroids were being used by the athletes, steroids could theoretically have been used and abused up until the very end of 2003 without any official penalty from the league.
It was actually in 2002 that the MLB Players Association and the League agreed to add an amendment to the Collective Bargaining Agreement to allow “Survey Testing” to take place in 2003 in order to determine what percentage of the league was using performance-enhancing drugs. Players were assured that this random and anonymous Survey Testing would remain confidential and would only be used to determine whether or not mandatory testing was “necessary,” i.e., whether use in the league passed a certain threshold. (Final results indicated that 5-7 percent of all MLB players tested positive for a banned substance, well above the threshold.) Thus, during this initial survey testing, a whole lot of urine samples were “created” by such luminaries as, for instance, A-Rod and Manny. The testing was administered by an independent company, Comprehensive Drug Testing, Inc. (CDT), which also stored the test results, while the actual specimens were maintained by Quest Diagnostics, Inc. (if you were wondering).
In 2002 and, thus, in the same year that the Collective Bargaining Agreement between the MLB and the MLB Players Association was being amended, federal agents began investigating the now infamous Bay Area Laboratory Cooperative, aka BALCO, after an anonymous tip informed the government that BALCO founder, Victor Conte, had been distributing a steroid, nicknamed the “Clear,” that would pass common drug tests, such as those instituted by the Olympic Committee. As part of its multi-year investigation of BALCO, the government learned of 10 players connected to BALCO who had apparently failed tests administered by CDT during the round of Survey Testing administered in 2003. The government initially filed a subpoena for the records of all the players who had tested positive during the Survey Testing; the Players Association moved to quash the subpoena, at which point, the government obtained a warrant for only the records–both the test results and the specimens themselves–of the 10 players apparently connected to BALCO. The government, at this point, however, proceeded to seize the records of all of those that had been tested and, simultaneously, infringed the Fourth Amendment rights of these individuals. It is from this phantasmagorical list of one-hundred or so players that such names of (and results from) A-Rod and David Ortiz have recently been leaked to the media.
The Ninth Circuit opinion released last week runs a good 63 pages, and a lot of the opinion deals explicitly with the complicated procedural history of the case, along with specific procedures that must be utilized by a government body when attempting to obtain information in a warrant when the information sought–in this case the tests of the 10 athletes implicated in the BALCO investigation–is intermingled with lots of other information, i.e., all the other tests administered. In essence, the court states that the government did not comply with the requirements of the warrant and that its reasoning for seizing all of the records, as opposed to the 10, was mere “sophistry.”
However, again, certain players may not appreciate this victory for their constitutional rights, because, (pardon the conceit) the proverbial court of public opinion, has, in most cases, already made its ruling and the majority opinion there holds that using steroids or other performance-enhancing drugs–regardless of whether they were officially banned by the League at the time–is still, plain and simple, cheating.
– Stuart Burkhalter
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