January 2, 2007

The Ledger Domain

The Fourth Amendment, the MLBPA and the BALCO Investigation

by Maury Brown

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.

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