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The 2003 steroid list should never have existed in the first place

Aug 27, 2009, 8:50 AM EDT

That’s what the 9th District Court of Appeals said yesterday anyway:

The federal government illegally seized confidential drug test results of dozens of Major League Baseball players and must now return the records, a federal appeals court ruled Wednesday.

“This was an obvious case of deliberate overreaching by the government in an effort to seize data” it was not entitled to have, Judge Alex Kozinski wrote for an 11-judge panel of the 9th Circuit U.S. Court of Appeals.

And of course, if there was no illegal seizure, there would be no “list” and if there was no list there would be no leaks like we’ve recently had.

As I’ve said before, It was already ridiculous for people to call for “all the names to be released” given that doing so would be to violate a federal court order. It’s even more ridiculous now that the list’s very existence has been confirmed to be premised on the government’s violation of the Constitution in obtaining it. Of course, that doesn’t stop some folks, in this case the Associated Press’ Tim Dahlberg, from continuing to get it all wrong:

Yes, in a perfect world certain names wouldn’t be made public while other names remain secret. But in a perfect world baseball players wouldn’t have used concoctions whipped up in a lab to make a mockery of the records that the game used to hold so sacred. So don’t feel too sorry for A-Rod and company just yet.

How it is that people continue to think of baseball’s PED rules — which, at their heart, are no different from the work rules in your employee manual — are more important than the Constitutional rights of Americans is beyond me, but there you have it. Don’t feel sorry for A-Rod that he was betrayed by his union and fell victim to illegal acts by government agents! He was ‘roiding, and we all have a right to know about that!

Of course oftentimes justice delayed is justice denied, and that’s certainly what we have here. Because years passed between the seizure and the court’s final ruling of its illegality, the list was able to be created and the leaks able to be leaked. In light of that, yesterday’s ruling is of little practical help to the ballplayers’ whose names appear there. Someone still knows the names, and given that they’ve already leaked some of them in violation of a court order, there is no reason to believe that this ruling will stop them from continuing to do so.

Hopefully, however, we will all have a new appreciation for just how outrageous such leaks are, and treat the inevitable release of additional names with an appropriate level of skepticism and disdain.

  1. Grant - Aug 27, 2009 at 10:13 AM

    Craig, you’re doing excellent work with this. It’s too bad no one is going to listen to you. The sanctimony sharks smell blood, and they will have it.

  2. glp - Aug 27, 2009 at 11:29 AM

    So what now? The court (rightly) states that the government was not entitled to seize the records. The records have to be returned. But isn’t the damage done? Aren’t they closing the barn door after the horse has run away? What good does this do? The records have been seen by many people now and more names could still come out. Craig, you’re the lawyer. Does anbody truly “pay”? Does anybody or any entity truly suffer consequences as a result of this ruling?

  3. Craig Calcaterra - Aug 27, 2009 at 11:38 AM

    I’m not an expert in this area of the law, but there’s no real obvious means to make anyone pay. Usually the sanction for a fourth amendment violation is the loss of the evidence in the criminal prosecution. Here, however, the government never intended to use it in any criminal prosecutions. The seizure of the non-BALCO names was meaningless to their case at best, a cynical P.R. ploy at worst.
    There are a couple of esoteric legal theories under which someone in the players’ position could conceivably sue the government here, but from what little I understand of those theories, they are total longshots and not likely applicable to this case.
    In other words: you can’t unring the bell.

  4. Mark - Aug 27, 2009 at 11:47 AM

    glp, we pay if this isn’t done. We suffer the consequences if this is ruling isn’t made. That’s the way I would look at it. Yes, the horse is out of the barn but eventually the right thing was done. Small consolation to those affected by this action so far but it had to be corrected through the courts and it has been.
    Craig, I echo the earlier comment. Like everything you’re doing here, great work. I shouldn’t be but I am somehow amazed at how consistantly this angle has been ignored by the media and the public. Not unlike the torture issue. Thankfully both seem to be elbowing their way into the discussion however late.

  5. Evan Gilchrest - Aug 27, 2009 at 1:14 PM

    Craig, once again you’re the one being ridiculous.
    Get off your high horse and understand that baseball fans DO NOT care about a federal court order. For us to say, “release the names” doesn’t mean we want some legal wizard to cook up a fair and equitable resolution that both releases the names to the public while following the letter of the law.
    Leaks are always shady and typically illegal. Us baseball fans could care less if the names are released by the government, the news media or some inside guy who chooses not to be identified for fear of prosecution. We want the names released because we love baseball, we love it’s rich history, we hate cheaters and WE’RE CURIOUS. End of story.
    You keep tossing out hypothetical situations that are analogous to the plight of these poor ballplayers. You say that if their names are released, its no different than if the government . Guess what? If my medical records were released to the public, NO ONE WOULD KNOW AND NO ONE WOULD CARE. You know why? Because I’m not a baseball player. When you’re a public figure like an athlete or celebrity, you can kiss your privacy rights goodbye.
    Is it fair? Maybe not. Do I care? No. It’s not like athletes/celebrities don’t know what they’re getting into. If they want out of the public eye, they can quit and fade into obscurity. In the meantime, if they want to be baseball players and make 9328403928423098 dollars a year, they have to live with the scrutiny and assume that their baggage will get out sooner or later.

  6. Evan Gilchrest - Aug 27, 2009 at 1:17 PM

    EDIT: You say that if their names are released, its no different than if the government violated my privacy rights.

  7. Craig Calcaterra - Aug 27, 2009 at 1:26 PM

    Evan, I guess all I can say to that is that, hey, at least you’re honest. The implications of your comments are truly terrifying from a legal and safety perspective, but hey, at least you’re honest.

  8. DamianV - Aug 27, 2009 at 2:08 PM

    You know what, is anyone tired of beating a dead horse yet?
    We the fans do care about baseball, it’s past, present and future.
    The steroids list and all its issues need to be buried in the annals of sports history. If the fan is so concerned about steroid use, why did they welcome Manny back with open arms? I know some of you will say “Hey man, it’s LA”. LA, NY, Kansas City, Baltimore, we’re all fans and want to watch baseball.
    Please close this turn this page in sports history and play ball.

  9. TomSD - Aug 27, 2009 at 2:15 PM

    What is the salary level where you “deserve” to know everything about a baseball player? If they are making more than 8 figures then you want to know, or is the bar lower than that?

  10. glp - Aug 27, 2009 at 2:21 PM

    Evan, please don’t speak for me. I am a baseball fan and I don’t feel that way. I totally disagree with you. Yeah, I love baseball, I love it’s rich history, I hate cheaters and yeah, I’ll admit it, I’m even a little curious. I have a curiosity about a lot of things, but that doesn’t mean I have a RIGHT to access them. It’s entirely different. I might want to know what the hot neighbor lady looks like naked, but that doesn’t mean I get to find out just because I want it. No.

  11. Kim - Aug 27, 2009 at 2:23 PM

    Craig, I like the angle and it’s too bad that people don’t care and most are simpleminded like Mr. Gilchrest. He just doesn’t get that NO NAMES SHOULD HAVE BEEN RELEASED. PERIOD. It doesn’t matter WHO wants to know, it’s NO ONE’s BUSINESS. Besides that, steroids and what they were doing in baseball AT THE TIME were not NOT ALLOWED according to baseball rules. Why can’t anyone see that either?? So we don’t like it and those players are “cheaters”. Really? If kicking was allowed in football and then suddenly it was NOT allowed, would those guys be cheaters too? Whatever. I just hope the person or persons who leaked this are sued and fry.

  12. glp - Aug 27, 2009 at 2:26 PM

    Evan, please don’t speak for me and say that “baseball fans do not care.” I totally disagree with you. I’m a baseball fan. A rabid one. I love baseball, I love its rich history, I have cheaters, and yeah, I have to admit, I’m a little curious. I’m curious about a lot of things. Curiosity does not equal a right to access. I might be curious to know what the hot neighbor looks like naked, but just because it’s something I want to know doesn’t mean I get to find out. No, don’t speak for me.

  13. michael - Aug 27, 2009 at 3:11 PM

    Were the name leaked illegally, yes. Is it wrong to denounce players for a supposed private study, yes.
    So, why is no one standing up and declaring the same sympathy, appreciation of law, and what IS right and should be done in regards to one Barry Bonds.
    Anything and everything related to his case, Balco, etc were all LEAKED from a SEALED Grand Jury Testimony. No on then or now has come out and said that “it shouldnt have been released, bonds is being wronged by the government and private freelance journalists.” Hell, and entire book was released with just this supposed ‘private’ information.
    Alas, the reason no one brings this up is no one cares about Bonds, who could still play today and would help many teams on the brink. But when the david ortiz and arod and other fan and media darlings are implicated, oh well lets make a hoohah.
    Do i need to remind anyone, this issue borders two worlds, the legal world of the USA and the baseball world – a anti-trust exempt private enterprise that is worth Billions. While its easy to stand behind this lame duck excuse that they were manhandled by the US government – but the WHOLE REASON THE GOVERNMENT got involved to start with is because a private enterprise was found to be knowingly hiding a culture permitting the use of illegal goods in our country. Furthermore, they resisted testing and anything of the like for years past any other professional or amateur sport league and basically dangled the carrot in front of congress to push the buttons forward – now they are crying over the spilled roid milk??? whatever.

  14. Darryl - Aug 27, 2009 at 3:16 PM

    Mr. Gilchrest, does not the Constitution provide for equal rights under the law for ALL citizens? Making a certain amount of money, or choosing a career in politics, sports, or show business are irrelevant, and do not mean that someone forfeits those rights, no matter how many people watch Access Hollywood, or what the talking heads on Sportscenter say.

  15. Joe Gallagher - Aug 27, 2009 at 3:34 PM

    One of the many reason we love this game is its fairness.
    In the original sampling agreement with the players it was specified that no one would be punished, the records would all be destroyed, and that the SOLE purpose of the testing was to see what kind of a problem MLB had with drugs (not only steroids).
    MLB and the Players Union did not destroy the records in a timely manner; the records were stolen by the Federal Government; selected names were released in violation of a court order; published, again in violation of the court’s order; and it is unclear exactly what ‘drugs’ were found, and many wrongly assumed steroids. All of that is unfair, grossly and outrageously unfair, regardless of the numbers on any one’s paycheck or HR stats.
    All I want, all I have any right to, is a game on a level field. The guys playing the game deserve no less. Baseball the game is not dirty. A tiny number of players, and the bottom feeders they attract are. That has not changed since day one.

  16. Omega in Colorado - Aug 27, 2009 at 3:47 PM

    of course I am curious about the names on the list. However, I feel safer with the 4th Amendment in place and applaud the judge for reaffirming all American’s rights under the 4th Amendment. That being said, I don’t want to know the names on the list, of feel entitled to know the names.
    So, Evan, don’t speak for me when it comes to my privacy rights. Also don’t speak for the baseball players, who are also protected by the 4th Amendment.
    I hope whoever is responsible for the leaks faces justice for their illegal actions.

  17. J. Barn - Aug 27, 2009 at 4:01 PM

    Who cares what the court said? I am an attorney and I watch courts get it wrong all the time. I really don’t care that it was against the law for the names to be outed. However, now that they are the cheaters on the list should never be allowed in the Hall of Fame.

  18. Evan - Aug 27, 2009 at 4:56 PM

    Didn’t say anything about “deserving.” I’m not sure where you got that from.
    There’s no real level per se, but the reason I referenced money is because even avid baseball fans would have difficulty naming 10 players that make less than 750k per year. But naming the guys that make 2mm+ per year? That’s easy! The only exception would be the John Rocker rule. You can always name the idiots that say ridiculous things to the media (Rocker) or are at the center of a steroid scandal (Grimsley).

  19. Evan - Aug 27, 2009 at 5:20 PM

    I never said, “I have the right to know.” If anything, I alluded to the fact that I have the right to WANT to know. And I’m glad you admitted your curiosity about your neighbor. That really gets to the heart of my point.
    Lets say your neighbor is a celebrity and, besides you, 60 million other people want to see her. Well, in world we live in, it probably won’t be long before you and everyone else gets to see it. Is that right? Probably not. But if there’s money to be made and your neighbor is an idiot, it will probably happen. I think you agree with me moreso than you think.

  20. Evan - Aug 27, 2009 at 5:28 PM

    Kim, I’m not sure what planet you live on. Here on my planet, the names got released. Talking about why they never should have been released is irrelevant. Its also irrelevant whether or not its any of my business. I’m curious. Is that a crime? ABSOLUTELY NOT.
    If some unethical lawyer or gumshoe reporter or turncoat ball player wants to tell me something, how is it my fault if I listen?

  21. Evan - Aug 27, 2009 at 5:36 PM

    Darryl, you and I both know that celebrities and athletes have their privacy rights violated on a regular basis with little to no punishment. You and I both know that, despite those rights afforded to them under the consistition, the paparazzi etc will always violate those rights as long as they can make an extra buck and/or there is a collective curiosity.
    It is common knowledge that celebrities, athletes and anyone who is high profile is exposed to this kind of treatment because of their status. Legally speaking, the constitution should protect them from that. In reality it doesn’t.

  22. Evan - Aug 27, 2009 at 5:47 PM

    You contradicted yourself. You open your reply by saying, “Of course I am curious about the names on the list.” Then, mid reply you say, “I don’t want to know the names on the list.”
    So which is it?
    Also, I can speak for whoever I want. I think that’s somewhere in the 1st amendment.

  23. mike - Aug 27, 2009 at 8:18 PM

    The thing you’re wrong about is that basball fans care. They don’t. look at attendance and you can see no one cares. Sure, everyone is curious as to who was juicing but so what. What are they going to do? Boo. Money has notheing to do with it, and to be honest, I couldn’t care less if they take steroids. I like home runs and 100mph fastballs. All the “purest” are losers keeping stats in their mom’s basement. The record books are a joke and the HOF is a popularity contest by the writers (Sandy Koufax). You can’t compare generations of players because the rules were different, competion, equipment etc… so who cares. Do we wipe out the records od the guys from the 60’s and 70’s playing on speed and coke? Get a life.

  24. Thomas Kraft - Aug 30, 2009 at 12:18 AM

    I read some of the comments that your readers have said, but aren’t we missing the reason why we watch or go see ballgames. It’s beacause we are fans of the game and if someone is cheating by taking steroids or an other juiced up lotion, pill or what else. Isn’t he cheating you of your reason to watch or see a game. Cheating is cheating and if your on a list explain yourself and be done with it. Don’t do the Mark McGuire bleed the 5th. Any ballplayer that used should have no record of accomplishment to their name. The game should have nothing to do with these players like Barry Bond, Mark McGuire, and Manny Ramirez they cheated. Until MBL does what the NFL is doing with players by suspending for games or full season or even without pay maybe than MBL will get its act together. I can’t stand people that defend cheaters.

  25. ben - Sep 15, 2009 at 11:35 AM

    we focus on the hitters. They were facing pitchers that also had access to the same things. Every era has had it’s own problems. Should we punish everyone before Jackie Robinson because all those records are tainted by white only rules? Let’s take ty cobb out of the hall since profiling would say he was a psycopathic racsist. What goes on on the field-Mcquire, Sosa whatever is still baseball-ENJOY

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