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MLB, PEDs, and the Fourth Amendment
2007-01-16 00:21
by Bob Timmermann

Adam Thompson of the Wall Street Journal has a report about how Federal prosecutors obtained the names of over 100 MLB players from 2003 who tested positive for steroids and how it might have been a violation of the 4th Amendment as the method of searching may raise some interesting civil liberties issues.

The issue is that Federal agents may not have been authorized to obtain the names of the approximately 100 players when their warrant only specified 10 (still unnamed) players. However, the investigators came across the names on a computer they had permission to search. But how much of it could the Feds search.

"We were authorized specifically by the warrant to search every single file in all of their computers," Assistant U.S. Attorney Erika Frick said. "We took only one directory. We were authorized to search every one of those files."

But ...

Courts have often struggled to define which searches and seizures are "unreasonable." For instance, authorities are allowed to seize evidence that lies in plain sight, even in if they lack a warrant. In a less complicated criminal case, the doctrine allows, for example, police with a search warrant for drugs to seize an illegal gun they might see on top of a table.

"Normally we all know agents can look in a closet," says Fordham University criminal law professor Dan Richman. "This is a really big and interesting closet."

The government argues it needed to cast a wide net, gathering large bunches of files to make sure to find all pertinent evidence, not merely believing the labels on files in a computer directory. If during that check prosecutors came across evidence of a crime, they could keep it and use it.

The MLBPA is appealling to the case to a 15-judge panel of the Ninth Circuit Court of Appeals. Previously a 3-judge panel from the Ninth Circuit upheld the legality of the search.

The case is United States v. Comprehensive Drug Testing, Inc. and I would link to the opinion, but it's a 115-page pdf and I think that's about 114 1/2 pages too long for most of us to read. Here's a FindLaw summary.

2007-01-16 00:46:17
1.   Greg Brock
Hmmmm...Ninth Circuit. Anything can happen!
2007-01-16 00:50:24
2.   Greg Brock
Whatever the ruling, it stands a great chance of being overturned...
2007-01-16 00:50:35
3.   El Lay Dave
So confidentiality agreements, such as between MLB and the Player's Cartel for certain drug testing results, may not hold much water when the positive results are for illegal substances and there is a warrant for at least one player. Interesting.
2007-01-16 10:09:04
4.   Jeffrey Standen
Just for your readers' information, I summarized this decision and offered some thoughts for its ramifications on my blog. The link is below. Feel free to delete this link if you don't allow them in comments.

Jeffrey Standen

2007-01-16 10:35:18
5.   Bob Timmermann
Nope, that's perfect. I had forgotten to check your blog despite being over on the sidebar.
2007-01-16 10:59:37
6.   Andrew Shimmin
Will the hundred or so players have action against MLB once their names are leaked? MLB doesn't seem to have kept its contractual promise of anonymity. I agree with the post linked in 4 that the players were crazy to trust MLB not to screw that up. Does that get MLB off the hook? Is 'Everybody knew we were going to screw this up,' a defense?
2007-01-16 11:37:20
7.   Greg Brock
6 Like Mr. Standen said in his outstanding article, private agreements are meaningless when federal prosecutors get involved.
2007-01-16 11:37:39
8.   Ali Nagib
3 6 - I'm fairly certain that the players would have no recourse against MLB, as their exposure would not be the result of MLB's deliberate action or negligence, but rather the superceding authority of a Federal criminal investigation and prosecution. It's similar to the more common (at least on Law & Order) scenario where an employee (current or former) of a company signs a confidentiality or non-disclosure agreement that includes financial penalties is the agreement is violated. In order to further the interests of justice, such agreements basically get thrown out the window when it comes to a government investigation of (related) criminal activity. So the players are basically screwed, and it's really the MLBPA's fault for not making sure that a government investigation wouldn't mess everything up.
2007-01-16 12:06:23
9.   Andrew Shimmin
7- Right, I understand they don't mean anything to the Federal investigation. But there's no civil responsibility, beyond that? The other players who turned up dirty aren't being investigated. Just the BALCOns. Assuming that remains true, and assuming that all the names are leaked, do the dirty non-investigatees still have no recourse?

I don't know how the MLBPA should have handled it. There was no way they were going to be in charge of the testing. They wrote a contract which, had it been followed, would have been acceptable. Maybe they should have delineated the steps necessary to keep the program anonymous, but it seems like a stretch to require that.

2007-01-16 12:34:24
10.   Andrew Shimmin
8- How is it not negligent to permit a subcontractor who was supposed to be performing anonymous tests perform coded but not anonymous tests? I've not read either contract (the one with the players, or the one with the subcontractor), and I'm not a lawyer, so, I could easily be completely wrong about all of this. But, Federal investigation notwithstanding, it seems like the MLB is in breach of contract. And that the dirty players who have their names leaked will have demonstrable damages.
2007-01-16 12:39:05
11.   Greg Brock
Hey, it's that 9th Circuit Court of Appeals!

2007-01-16 14:01:27
12.   El Lay Dave
4 Good summary; I'll have to read your blog more often.

10 It wasn't clear to me from the synopses exactly who held the key that matched player names to sample numbers. Perhaps it should have been MLB holding that key for themselves, but I wouldn't be surprised if some law prohibits labs from conducting tests on (precious) human bodily fluids without direct knowledge of the source. I'm not a lawyer either, but I'd hazard a guess that if the information gets leaked, it would be the leak source that the players could go after for damages.

11 The article doesn't state what the 9th Circuit objected to, exactly. The directive seemed to be resentence and explain better. Maybe they agree with the prosecutors that 22 years was too lenient and there were insufficient written reasoning why?

2007-01-16 14:32:53
13.   Andrew Shimmin
There shouldn't have been a key. One can get an AIDS test without giving any identifying information to the tester; the testee holds the key because in that case, the thing has no value if there's no way to find out one's own results. But the stated purpose of MLB testing was not to find out who was juicing, but to see how big a problem it was. There wasn't any need for a key, and, it's my understanding, there was a contractual obligation that there not be one.
2007-01-16 15:00:26
14.   Icaros
If you love the cheating roidheads so much, Andrew, why don't you just marry them?
2007-01-16 15:12:53
15.   Greg Brock
12 If the 9th Circuit thought that a sentence was too lenient, I'm pretty sure that would be a first in a couple of decades.
2007-01-16 15:25:36
16.   Andrew Shimmin
14- I think you're confused. D4P was the one making eyes at the butch tennis player, last night.
2007-01-16 15:50:28
17.   Icaros

I heard he's already lost to her in a belching contest.

2007-01-16 15:52:48
18.   El Lay Dave
15 I was sort of joking. My not-well-made point was the article was unclear as to what was really happening with this case. I'm no lawyer, but I imagine an appeals court primarily upholds rulings or overturns them and sends them back to be retried (or redone.)

16 I don't know that she was so much butch as just a bit funny-looking.

13 You may be right about the key, but one might imagine that the high-priced lawyers drafted an agreement that spelled out the entire process in all its gory detail, so the MLBPA could have agreed to this specific method. Or not.

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