January 2, 2007

The Ledger Domain

The Fourth Amendment, the MLBPA and the BALCO Investigation

by Maury Brown

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Baseball's steroid-testing program found its way back into the headlines last week. There weren't any delayed test results from the 2006 season, and Barry Bonds didn't slip in the tub, crack his head and decide that he really did knowingly take the "clear" and the "cream."

No, what transpired last week has to do with test results from 2003 and a United States appeals court. It has to do with the BALCO investigation. It has to do with the MLBPA. It also has to do with the Fourth Amendment and the Bill of Rights. The events of last week could create case law that impacts far more than professional sports and the use of illegal performance-enhancing drugs. If this ruling is upheld, it has the capacity to determine what is permissible as reasonable search-and-seizure in the electronic domain.

Nearly five years ago, a confidential "Survey Test" was negotiated as part of the 2003-2006 Collective Bargaining Agreement, a test designed to learn how prevalent steroid use was in Major League Baseball. Players were tested twice during the 2003 season (including spring training but not the postseason). In addition, the Office of the Commissioner had the right to conduct additional Survey Testing in 2003 in which up to 240 players, selected at random, could be tested. If 5% or more of those tested came up positive for steroids, mandatory testing would take place beginning in 2004. The results were to remain confidential; even a player who tested positive would not be informed. Names were never listed on the testing samples. Rather, a number was assigned with a separate key used by the testing facilities. That year, 1,438 players were tested, and 104 of them, or 7.23%, tested positive for steroids. Mandatory testing was then implemented in 2004. The 2003-2006 CBA also says that, "At the conclusion of any Survey Test, and after the results of all tests have been calculated, all test results, including any identifying characteristics, will be destroyed in a process jointly supervised by the Office of the Commissioner and the Association."

For a reason not yet known, the MLBPA did not destroy the test results. That leads us to last week.

Last Tuesday, a three-judge panel of the Court of Appeals for the Ninth Circuit, in a 2-1 ruling, found that federal investigators investigating the BALCO case may use records seized from two separate testing labs where the confidential test results of the players who tested positive for performance enhancing drugs during the 2003 survey tests were kept. At issue is the fact that the search warrant was to be used to collect information on 10 players who were associated with the Bay Area Laboratory Co-operative (BALCO) investigation, and not any of the other players that tested positive as part of the 2003 "survey testing." It is how the investigation went from documentation and records of 10 players to far more that is at issue. (Initially, the federal government was looking to acquire evidence on 11 players. The government later decided not to seek drug-testing evidence related to one of the 11, and on April 22, 2004, sent a letter to the counsel for CDT withdrawing requests for documents related to that player. While the name of the player is not mentioned in the appeals court ruling, one may speculate that Jason Giambi may be the player since he admitted to steroid use during the BALCO investigation).

As the appeals court ruling (United States v Comprehensive Testing) goes on to say:

[A] CDT director finally identified a computer directory containing all of the computer files for CDT's sports drug testing programs. This directory, labeled by its original compiler as the "Tracey" directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst-here the advice of Computer Investigative Specialist Agent Joseph Abboud-agents copied the directory and removed the copy for later review at government offices.

The ruling then goes on to say that:

Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named BALCO players, intermingled with positive results for twenty-six other players.

Within these documents were not only the test results and the assigned number, but the key that placed a name with that number.

It is here that the conversation changes to whether this is a breach of the Fourth Amendment. There are questions as to whether all the records collected fall under what is considered "reasonable search and seizure." The majority ruling indicates that, in the midst of an investigation, other criminal evidence found can be used. In this case, the search for a limited set of files on a computer leads to others that may be linked to criminal activity.

"[T]he directory contained 2,911 files that had nothing to do with Major League Baseball drug testing, but rather contained test results for numerous other sports entities and business organizations," wrote Judge Sidney R. Thomas in his dissent. "Dr. Jean Joseph of CDT later stated in an affidavit that the directory was easily searched by key word and would have provided the test information about the 10 players in a short period of time."

As Judge Thomas further writes, "What happened to the Fourth Amendment? Was it repealed somehow?"

Indeed, federal agents took data that not only related to the 10 players in BALCO investigation, but all the players involved in the survey testing. It doesn't end there. Thousands of other medical records for individuals in 13 other major sports organizations, three unaffiliated business entities and three sports competitions were collected as well.

As Judge Thomas further writes, "The government now seeks to retain all of the medical information it obtained about persons who were not the subject of any criminal inquiry."

Understandably, the Players Association strongly disagrees with the ruling. In a statement by MLBPA, Executive Director Donald Fehr said:

Under a search warrant seeking information about only 11 baseball players, confidential records for every player were seized, along with confidential records of thousands of other people with no connection to baseball, including many with no connection to sports. The government seeks to retain all of this private information about thousands of people who were not the subject of any criminal inquiry.

In his dissent, Judge Thomas said that under this ruling "no laboratory, hospital or health care facility could guarantee the confidentiality of records." That is something which should be of serious concern to all Americans."

There are questions that come out of the ruling. Some of them are…

How does this impact the BALCO investigation?

Let's start with whether this places pressure on 10 players outlined in the BALCO investigation, and in particular, Barry Bonds. It seems that even if Bonds did come up with a positive test, it doesn't add to the perjury case against him.

Let's say Barry Bonds did test positive for steroids in the "survey test," since he would not have been informed of the positive test, he would not have perjured himself before the grand jury; or more correctly, would not have committed perjury based on the 2003 test results. Remember, Bonds said that he thought he was taking flaxseed oil, not steroids. So, Bonds, or for that matter, any of the other BALCO defendants that may have said that they didn't knowingly take steroids would not be lying before the grand jury based upon confidential test results from the 2003 survey testing.

Will this matter continue in the courts?

The MLBPA plans to fight the ruling, although they have not stated publicly what their course of action might be. The case could be reheard by the entire 12-member Appeals Court, or failing there, could go all the way to the Supreme Court. In other words, this case will be within the court systems for one or more years.

Is this case about more than baseball and sports?

This is the larger question. As mentioned, there are concerns about how this case will impact rulings in the future. It will become case law that goes to how the Fourth Amendment is interpreted. So, this is much larger than whether Barry Bonds is indicted on perjury charges. It will influence what is deemed to be reasonable search and seizure. As Donald Fehr mentions, "That is something which should be of serious concern to all Americans."

Maury Brown is an author of Baseball Prospectus. 
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