- Lester Munson, Legal Analyst
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After a report in The New York Times last week that David Ortiz and Manny Ramirez tested positive for performance-enhancing drugs in 2003, Major League Baseball Players Association executive director Donald Fehr and others complained about the "leaks" that were the basis of that story as well as others which revealed the names of players who tested positive in 2003. Fehr suggests both the sources who divulge the information and the reporters who seek it are guilty of crimes, saying, "The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime." The disclosure of information from the confidential testing in 2003, and Fehr's reaction to it, raise legal questions. Here are some of the questions and their answers:
Is Fehr correct? Is it a crime to report a positive test from the 2003 testing?
Fehr may be technically correct. But his opinion is based on tight, legalistic thinking that might not be realistic and likely will not result in any formal charges against anyone. Fehr insists that both the source and the reporter are guilty of crimes. Under the terms of an agreement between the union and MLB owners, the 2003 test results were to be confidential. When federal agents seized the test results in a series of raids, the union obtained court orders that re-enforced the agreement's confidentiality clause. Fehr now relies on those court orders when he complains about the leaks. The court orders apply to the union, the owners, the laboratories and their attorneys. If anyone from this group leaks the information to The New York Times or any other media outlet, the source could be the target of a contempt of court proceeding. Fines and jail time are a possibility. But it is difficult to see how the reporter in pursuit of the leaks has violated the court order. Reporters and news organizations are not part of the litigation that resulted from the raids and the seizures, and are not bound by the court orders.
Didn't someone go to jail for leaking information in the BALCO investigation? Won't that happen now in the Ortiz-Ramirez leaks?
Yes, an attorney who leaked BALCO grand jury information was sentenced to two years of incarceration, but his situation is different in significant ways. Troy Ellerman, who represented Victor Conte, BALCO's founder and CEO, admitted that he divulged a large quantity of information that was the basis of a series of blockbuster reports in the San Francisco Chronicle and for the remarkable book on the investigation, "Game of Shadows," by Mark Fainaru-Wada and Lance Williams. The material that Ellerman leaked was grand jury evidence, both witness testimony and important documents. A grand jury's operations are secret. Prosecutors use grand juries to investigate criminal activity and their work must be confidential to be effective in pursuing those who violate the law. Judges are aggressive in their protection of the grand jury. A violation of grand jury secrecy is a serious situation in courts throughout the U.S. But there is no grand jury investigation involving the 2003 testing. In fact, there is no investigation of any crime. The 2003 testing controversy is centered around a contractual agreement for confidentiality that has not worked out the way the players and the owners hoped it would.
What can Fehr and the players do about the leaks?
Fehr suggests the union will do something, but he has offered no specifics. The litigation over the federal agents' seizures of the 2003 tests is now pending in the U.S. Court of Appeals in the 9th Circuit. After hearing arguments in December, the judges have been pondering a decision for nearly eight months. If Fehr and the union are serious about doing something, they would be required to file a separate legal action. Even if they file it, it is difficult to imagine that an investigation of the leaks would be successful. Michael Schmidt, the Times reporter who broke the Ortiz-Ramirez story, would refuse to divulge his sources. The sources would remain silent about any leaks they made. And it is easy to imagine that a judge deciding the issues would conclude that there is little reason to investigate leaks of drug tests that are now six years old.
Can Ortiz, Ramirez and other players file a class action based on the revelation of tests that were supposed to be confidential?
Any lawsuit filed by Ortiz and Ramirez would face major legal obstacles. The union, the laboratories and the owners appear to be guilty of conduct that failed to protect the confidentiality of the test results. But the federal agents' seizures of the tests are an intervening event that protects those parties from any legal action from the players. The ultimate cause of the revelations of positive tests is the action of the federal agents. The leaks have come only after the federal raids. And the agents are legally immune from any lawsuits based on their investigations.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.