Commentary

Appeals court ruling won't stop leaks

The decision is a win for the MLBPA, but the shouting about the 2003 tests isn't over.

Originally Published: August 26, 2009
By Lester Munson | ESPN.com

A federal appeals court in San Francisco ruled Wednesday that federal agents went too far in their seizures of 104 positive drug tests done in 2003 in an anonymous testing program conducted under an agreement between Major League Baseball owners and the players' union. The testing program was designed to measure the extent of the use of performance-enhancing drugs in baseball, and the results were to be confidential. But in 2004, teams of federal agents raided three testing labs armed with search warrants for test results for 10 players. When the agents discovered 94 additional positive tests, they grabbed those results as well. Wednesday's 9-2 ruling in the appeals court, a major victory for the MLB Players Association, raises legal questions. Here are some of the questions and their answers:

These tests were done six years ago. What took so long for the judges to decide the case?

The ruling

Read the legal summary of Wednesday's decision by the United States Court of Appeals for the 9th Circuit here. And read the full official opinion here.

Two things delayed the decision. First, the case involved three separate lawsuits filed by the players' union and government prosecutors. The players' union and its lawyers were relentless and aggressive in pursuing every detail and nuance, adding to an already jumbled situation. Second, and more importantly, the federal appeals court in San Francisco (known officially as the U.S. Court of Appeals for the Ninth Circuit) is the slowest appellate court in the federal system.

As the case dragged on, some of the names of the players who had tested positive were leaked to the media, including Alex Rodriguez, David Ortiz, Manny Ramirez and Sammy Sosa. Who was responsible for the leaks?

More than three dozen lawyers were involved in this litigation. All had access to the test results and their documentation. Most of the lawyers worked in large firms in which even more people had access to the material. Any of them could have leaked the test results. When major stars such as Rodriguez, Ortiz and Ramirez are involved, someone is going to leak the information, ignoring the terms of court orders that sealed the material. But the real cause of the public disclosures was the failure of the union and the labs to destroy the results after the tests had been completed. If the samples and the testing documentation had been destroyed in a timely fashion, the public never would have known the results.

Is this the end of the leaking of names from the list of 104 positive tests?

No. The courts now will require the federal agents and prosecutors to return all the samples and test results for the 94 ballplayers who were not named in the government's search warrants. Boxes of material will be returned to the labs and destroyed. The union undoubtedly will demand that the courts issue orders requiring the destruction of all photocopies of the test results. But if the union persuades a judge to issue such an order, it will be impossible to enforce. It would be like the judge ordering the national anthem singer to hit a high C. The judge can order it, but that does not mean the singer can or will do it.

[+] EnlargeJeff Novitzky
AP Photo/Susan WalshJeff Novitzky might have a tougher time with his cross-examination now, but the ruling likely won't hurt the government's case against Barry Bonds.
What does this mean for the Barry Bonds perjury prosecution?

Nothing. The Bonds prosecution currently is in the same appeals court, and some of the same agents are involved -- notably Jeff Novitzky, who led the investigation of Bonds and the raids on the labs. But they are the only connections. Federal prosecutors are asking the high court to allow them to use positive tests on Bonds that were done in 2000 and 2001. Bonds never has been named as one of the 104 positive tests from 2003. Although judges in the 2003 testing case have criticized Novitzky, there is nothing in the criticism that could be used against him if the Bonds case is returned to San Francisco for trial. Bonds' lawyers might try to use some of the judges' harsh language in their cross-examination of Novitzky, but it is not likely to be allowed. Not only do the 2003 tests not apply to the Bonds evidence, but the judge most likely will want more than this judicial criticism before she allows the defense to attack Novitzky's credibility.

This is an embarrassing loss for the federal agents and prosecutors. Can they appeal?

Their only possible appeal would be to ask the U.S. Supreme Court to review the decision of the San Francisco court. To make the request to the nation's highest court, the agents and the prosecutors who represent them would be required to obtain approval from the highest levels of the U.S. Department of Justice, including Attorney General Eric Holder. Although the Obama administration and Holder have been vigorous in their pursuit of the Bonds perjury prosecution, there is no indication they would be interested in prolonging the quest for the 2003 tests. It is possible, but not likely, that the government could ask for a review of a series of instructions on the handling of search warrants that were included in the 63-page decision issued Wednesday, but an appeal to the Supreme Court could make things worse if the court endorses them.

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.

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