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July 1, 2008

Stupid Lawyer Tricks

Midseason Report

by Derek Jacques

Since the last edition of Stupid Lawyer Tricks, we've had a lot of legal wrangling affect the wide world of baseball. Here's a quick rundown of the latest legal news that somehow involves the industry.

The Feds Lean on Mrs. Greg Anderson: As you might recall, the US Attorney's office re-introduced its case against and re-indicted Barry Bonds in mid-May, after having its original indictment dismissed on technical grounds. This turn of events has kicked back the trial in the United States v. Bonds until at least next March.

The new indictment was obtained without the melodrama of once again jailing Greg Anderson for contempt, due to his refusal to testify against Bonds before a grand jury. However, word has come out that shortly after the initial indictment against Bonds was handed down-and the day after Anderson was released from jail on the contempt charge-the US Attorney's Office sent a "target letter" to Anderson's wife.

The purpose of a target letter is to advise someone of their rights in a situation where a grand jury is investigating criminal actions to which they may be connected, much like the Miranda warning given to people who have been arrested. While the idea is to protect the target's rights, the timing of Mrs. Anderson's letter-sent by one of the lead prosecutors on the Bonds case-indicates another purpose: intimidation. Having learned the hard way that Mr. Anderson likes Bonds more than he likes his own freedom, the prosecutors were hinting at the next question: Does he like Bonds more than he likes his own wife?

Now, I know that sympathy for Bonds, or Anderson, or Marion Jones, or Tammy Thomas, or anyone else linked with BALCO is pretty limited. No one likes a cheat, and many consider anything that might help put Bonds in prison as serving the greater good. Some might also reason that if Mrs. Anderson has committed no crimes, she shouldn't fear being the target of a grand jury investigation. This just smells foul, or at least a bit stale. Sure, the government has a responsibility to zealously pursue convictions, where appropriate, and hey, for all we know, maybe Mrs. Anderson is a criminal kingpin, independent from the acts for which her husband was already convicted and served his time. But when I was in law school, lawyers and professors on the criminal side continually made the point that the least credible thing about the TV show Law & Order was the repeated device where the prosecutor coerced an eleventh-hour confession from the killer by threatening to send his [pick one: mother, wife, four-year-old child, beloved Labrador retriever] to jail in his stead. It makes for nice drama, the experts said, but also for convictions overturned on appeal and the eventual loss of one's law license. After all, if you threaten to harm their loved ones, most people would testify to anything, from the Lincoln assassination on down. So how much, exactly, would Anderson's testimony against Bonds be worth, if it's obtained by threatening his wife with jail time?

Congress Wants to Talk Baseball...Again: A few weeks ago, everyone's favorite congressional committee-that's right, the House Committee on Oversight and Government Reform-asked the heads of MLB and the MLBPA for clarification of testimony given to the Committee back in 2005, which touted the drop in positive tests under the league's steroid testing program between 2003 and 2004. It turns out that testing had been suspended for much of the 2004 season, as the owners and the Players Association tried to figure out where they stood in the wake of the federal government's seizing of the 2003 test results as part of the BALCO investigation. Because tests were suspended, and since some players may have had notice of when they would start up again, Bud Selig, Don Fehr, and other representatives of the Commissioner's office and the MLBPA may have been misleading Congress when they talked up the drop in positive tests.

Now, this business about the suspension of testing isn't new-it was covered in the Mitchell Report, which was released almost six months to the day before the Committee's ranking members, Representatives Henry Waxman and Tom Davis, sent out terse letters demanding answers from both Selig and Fehr. This means that either Waxman and Davis are among the slower readers on the face of the Earth-sure, the Mitchell Report was long, but discussion of this issue was only 280 or so pages in-or the timing of this is simply bizarre. After all, back in January, the committee held hearings on the Mitchell Report, and both Selig and Fehr were on hand to testify. If you'll recall, that hearing was high on self-congratulatory posturing and low on probing questions. Sources told the New York Times that the Committee actually was aware of the 2004 testing issues in January, but didn't ask about them because Mitchell had an early train to catch.

Now, this doesn't make sense for a whole bunch of reasons. First of all, the Committee spent most of its time with Mitchell telling him what a great guy he is. You'd think someone could have asked, say, Chris Shays to cede a few minutes of incoherent ramblings about Rafael Palmeiro's "two hundredth hit" to ask a question or two about the 2004 testing. Second, their questions were really for Fehr and Selig-why did they need Mitchell around, at all? Finally, what on Earth explains the five-month delay between those initial hearings and last month's letter?

It'd be shocking-in a Claude-Rains-in-Casablanca kind of way-if the Committee's members manage to squeeze one more high-profile hearing out of the Mitchell Report, coincidentally at the same time they're running for re-election. Shocking.

The Supreme Court Leaves MLB Hanging: The Supreme Court denied MLB Advanced Media's request to appeal the ruling in their big fantasy baseball case. You might recall, C.B.C. Distribution and Marketing defeated MLB's claims that they control use of the players' names and statistics for fantasy baseball purposes, meaning that C.B.C. could run fantasy leagues without licensing those rights from the league. The denial of cert--that's the fancy way of saying that the highest court in the land decided they didn't want to touch the fantasy baseball case--was somewhat surprising. Given the Court's recent pro-business tilt, and its historical weakness for MLB, you'd think it'd be happy to protect the league's financial interest in fantasy baseball from the First Amendment.

Since the Supreme Court won't hear the appeal, C.B.C. has won, and others are in a position where they too could start online fantasy leagues without getting licenses. But there are a few qualifications. At this point, the decision is only binding in courts of the Eighth Federal Circuit, a jurisdiction that stretches across the middle of the country, from North Dakota to Arkansas. Outside of that jurisdiction, MLBAM could try to tie a company up in litigation if it tried to set up shop without a license, hoping that another circuit court won't be persuaded by the "public domain" rationale that drove the Eighth Circuit's decision. Regardless of that fact, it'll be interesting to see what happens when it comes time to renew MLBAM's current licenses.

Derek Jacques is an author of Baseball Prospectus. 
Click here to see Derek's other articles. You can contact Derek by clicking here

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