Will names of other 103 be released?
and Claire Smith | Special to ESPN.com
Alex Rodriguez was one of 104 major league players who tested positive for steroids in baseball's first-ever drug-testing program in 2003. It was supposed to be a confidential test. But his test result was leaked to the media, and now the other 103 players are left to wonder if their test results will play out in the media, too.
"The matter is still under appeal," union executive director Don Fehr said, "so we have to assume that the law will be respected."
Breaking the law is at the center of this question, for the test results are being held by the government as part of its investigation into steroid distribution by BALCO, the Bay Area-based supplement company. A California appeals court will determine if the government can question the remaining 103 players or if the union and baseball can finish the job of destroying the results, as they agreed to do as part of the 2003 testing program.
This past Saturday, Sports Illustrated cited four anonymous sources in reporting that Rodriguez had tested positive in 2003. Rodriguez confirmed he had failed his drug test in an exclusive interview with Peter Gammons of ESPN on Monday.
Former union head Marvin Miller called for an investigation of federal prosecutors to help determine whether there was a government leak of the test results, which remain under court seal. "I think the first question ought to be: 104 names all testing positive, but you leak only A-Rod's. Why is that?" Miller said.
A media storm has surrounded Rodriguez and baseball since the SI story broke. Some, like Yankees co-chairman Hank Steinbrenner, have come to the support of Rodriguez. "I'm not angry at him at all, and I support him 100 percent," Steinbrenner said Tuesday night. "We support him, and we're going to do everything we can to make this season a successful one."
Others, like Hall of Fame pitcher Goose Gossage, are demanding more answers. "I want to know who these other 100 guys are," Gossage said. "Let's get it all out in the open. It certainly is not fair to A-Rod or to [Barry] Bonds. They're dragging A-Rod down."
Lost in the storm is that Rodriguez's right to privacy has been violated and the law broken. And now 103 other players are wondering if they will suffer that same fate.
In an interview with ESPN, Fehr explained the chronology of events that tied the hands of the union and shifted much of the burden of protecting the confidentiality of baseball's 2003 drug test results to the government. According to Fehr, the process of destroying those results had begun when the government issued a subpoena for the tests, stopping the process in its tracks.
"Once you find out that a subpoena has been issued, you obviously cannot destroy anything that is involved in an active investigation," Fehr told ESPN. "So we didn't."
The 2003 drug tests in question were part of the first-ever drug-testing agreement between MLB and its players. It called for a survey test which both sides agreed to keep confidential. If more than 5 percent of the players tested positive, baseball would install a more stringent program. Testing was completed on Nov. 13, 2003, and more than 5 percent -- 104 players in all -- tested positive. Rodriguez was among those players.
Players were informed that the 5 percent level had been exceeded on Nov. 14, the same day the news was released to the media. According to Fehr, on either that day -- a Friday -- or the following Monday, the union and baseball began working with the two companies involved in the testing to destroy the records and the urine samples.
While this was taking place, the government was considering whether to subpoena those results. Two months earlier, the federal government had made public its investigation into steroid distribution by BALCO. Ten of BALCO's clients were major league players.
According to Fehr, five days after baseball publicly announced the results of its testing program, the union was made aware that the BALCO prosecutors had issued a grand jury subpoena for the test results of every major leaguer, more than 1,000 players in all. The window for destroying the results had closed.
"If we had been in a rush to do something and then a subpoena showed up, I suspect people would be saying, 'why did you do that' and throwing around nefarious implications," said Steve Fehr, legal counsel to the union.
The grand jury subpoena launched a series of negotiations between the government on one side and the union and California Data Testing, the company overseeing the testing, on the other, over the scope of the BALCO investigation. Six months later, BALCO investigator Jeff Novitzky led 11 agents into the CDT office with a search warrant for the 10 BALCO-related players' results. He walked out with computer files containing the confidential test results of every major league baseball player as well as medical records of NFL, NHL players and three private businesses -- more than 4,000 files in all.
Three federal judges ordered the government to return the files, including one who asked if the Fourth Amendment against illegal search and seizure "had been repealed." Another of those judges, BALCO judge Susan Illston, called the prosecution's actions "a callous disregard" for the Constitution.
"We were perhaps surprised when the government did what it did," Steve Fehr said. "We went to court and got three different judges to say that the government was wrong and, in fact, had violated the constitutional rights of the players and of the players' association, and ordered it to give it all back."
A three-judge panel in California overturned that decision 2-1, allowing the government to pursue all 104 players who tested positive pending further appeals. It is unknown how many of the BALCO 10 were included in that total. Then the full 9th Circuit Court of Appeals vacated the panel's decision, and began hearing arguments in the case late last December.
There are 103 players wondering if their private records are safe until these 11 judges make their final ruling.
Jon Pessah is a senior writer with ESPN The Magazine, and Claire Smith is a baseball news editor for ESPN. The Associated Press contributed to this report.