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Even the government now believes that the 2004 drug test seizure was illegal

Dec 13, 2010, 8:45 AM EDT


In case you missed it over the weekend, the feds have agreed not to appeal the ruling that investigators illegally seized a list of baseball players who allegedly tested positive for steroids back in 2004.  Welcome news, even if it’s too late for Alex Rodriguez, David Ortiz, Sammy Sosa and the other 101 players who still stand the risk of having their putatively anonymous employee drug tests released by whoever it was who leaked the other names. Because that person still has the list, of course.

Throughout this entire drama, a large number of baseball fans have demanded that all of the names of those who tested positive be released. “Release the names!”  “Get it all out there!” “Clear the air!” they’ve cried, ignoring the fact that their “right” to know the drug test results of baseball players does not supersede the rights conferred by the Fourth Amendment to the Constitution of the United States of America. It has long been clear to me that such an approach is madness, because to do so would be to validate an illegal government search and would constitute a violation of players’ privacy rights.  Now even the government agrees with this, and there is no one who matters in the relevant litigation who believes that the search was anything other than a gross abuse of governmental power.

So, given that even the feds now agree that the search was unconstitutional, is there anyone out there who still thinks the names should simply come out?  If so, I’d love to hear the rationale. If you have one, be sure to explain how that rationale outweighs the Constitution.  It would also help if you could explain why your employer shouldn’t release your employee drug tests to the media and the general public as well.

  1. proudlycanadian - Dec 13, 2010 at 8:50 AM

    Cheating is cheating. I still want to know who was cheating. Who dun it? Baseball is an international sport Craig. There are jurisdictions in which US law does not apply. The list will come out sooner or later.

    • okobojicat - Dec 13, 2010 at 9:06 AM

      They were all Cheating. Every single one of them. That’s why it is so *&^%ing dumb to care which names were tested positive and which weren’t. Every single player in the major leagues takes a supplement that 50 years ago we would’ve called steroids. Every single player in the 60s and 70s was on greenies. They would be called cheating.

      Tommy John Surgery would’ve been called cheating in the 30s and 40s. Gloves the size of peach baskets would’ve been called cheating up until 1910s (or if you were Joe Morgan).

      Give it up already.

  2. Craig Calcaterra - Dec 13, 2010 at 9:04 AM

    There are jurisdictions where US law does not apply. The US is not one of those jurisdictions.

    And the day that our casual interests as fans trumps the Constitutional rights of citizens and legal residents in this country is the day that both sports and the Rule of Law is dead.

    • proudlycanadian - Dec 13, 2010 at 11:19 AM

      I was not raised on the intricacies of the US Constitution and US law. I was trying to point out that if someone wanted to leak all the names, it is easy to do so by using a venue outside the USA. If, as, and when the names were posted on a non US site, they would become public knowledge thanks to the Internet.

      • Charles Gates - Dec 13, 2010 at 12:23 PM

        Are you Julian Assange?

      • proudlycanadian - Dec 13, 2010 at 2:12 PM

        I doubt that he cares about baseball.

  3. Kevin S. - Dec 13, 2010 at 9:08 AM

    Sue for damages, give every penny to initiatives aimed at educating high school athletes about the dangers of steroids and preventing their abuse in that area.

  4. Jonny 5 - Dec 13, 2010 at 9:27 AM

    Why are our congressmen wasting so much time, effort, and our hard earned taxed money, on chasing people with evidence that is not legal? Are there not more pressing matters for them? 7 years of waste. Really? For using drugs? The tab must be astounding.

    I assumed the list was legal since it’s been dragging out so long. Seven years it took them to decide?

    Craig, sorry no one has broken the news to you yet, but the rule of law has been long dead.

  5. PanchoHerreraFanClub - Dec 13, 2010 at 9:45 AM

    It would be nice if some of the lawyers in Justice that leaked the names spent some time in the greybar hotel.

    Where is WikiLeaks when the world really needs them?

    • Craig Calcaterra - Dec 13, 2010 at 9:46 AM

      I don’t know enough to say for sure, so I haven’t posted on it, but I have reason to believe that it wasn’t Justice lawyers doing the leaking.

      • PanchoHerreraFanClub - Dec 13, 2010 at 10:15 AM

        If not Justice lawyers, then it would have be Justice, MLB, union, or judical staff. Anyway, whoever leaked it should be doing time.

  6. throwstrikes - Dec 13, 2010 at 9:59 AM

    Outing 104 names would not paint a clear picture of steroid use in MLB just of those who got caught using. Hundreds of others would still remain in the anonymity for being smart or lucky enough to not get caught.

  7. amhendrick - Dec 13, 2010 at 10:25 AM

    First, agreeing not to appeal the ruling isn’t the same as agreeing that the seizure was unconstitutional. Second, the Constitution doesn’t have anything to do with employers releasing drug test results to the media. Third, in the comment above you said you don’t believe it was Justice Dept. lawyers doing the leaking. Fourth, thinking that the names should come out isn’t the same as saying the the federal government should seize the list and publish it.

    I don’t necessarily disagree with your general take that the list should be private, but your analysis in this post isn’t so great.

    • Craig Calcaterra - Dec 13, 2010 at 10:42 AM

      Not appealing it may not be agreeing, but it is an acknowledgment that they don’t believe the argument to the contrary is worth making. It’s a giant concession and change of course. Given the course of 4th Amendment rulings in the past 20 years (always allowing the feds and cops to do more and more) it is extremely telling that they weren’t willing to take a shot with this.

      The Constitution does not say anything about employers releasing results to the media, you are correct. The Contract between the union and the league covers that. If the league were to change course and decide to release this information, they have sold out the players and breached their agreement. They should not do that and they won’t. And there is no evidence that the league was the leaking party anyway.

      I don’t think the government itself did the leaking. But even if they did, their biggest offense wasn’t the leaking. It was the seizing in the first place.

      How one can agree that the seizure of the list — which ensured its existence in the first place, seeing as though it was supposed to be destroyed — was unconstitutional, yet think the names should still be released is beyond me. That’s like saying that the criminal shouldn’t have robbed the bank, but that he should still get to spend the money.

      • PanchoHerreraFanClub - Dec 13, 2010 at 10:58 AM

        One further point, the steriod testing might also be classified as medical records. If so, HIPAA rules apply. There are huge possible fines (over $100 million) if the records are released to anyone (press included) without the patient’s premission.

  8. yankees1996 - Dec 13, 2010 at 10:31 AM

    It has taken the government all this time to admit to something that most people knew was suspect at the time it happened. The person or persons that is in possession of the list has the opportunity to continue to leak the names to the press thereby continuing to violate the players right to confidentality. The sport has been suffering since the illegal seizure of the list and the government now agreeing that there was a violation is not going to stop the suffering. The arrest and conviction of the person or persons leaking the information would be a step in the right direction, I don’t expect it to happen however.

  9. adambuckled - Dec 13, 2010 at 12:11 PM

    In addition to all of your excellent points, releasing The List would give anyone who lacks the powers of critical thought the false notion that it is an exhaustive list and an authoritative list. It is, in fact, neither. It’s just a list. The potential for false positives is significant. Beyond that, the list contains the positive tests from one test.

    I’ve heard people seriously propose that the list contains the names of every Major League Baseball player who has ever taken performance enhancing drugs when it really contains the names of some players who may or may not have taken banned substances even after being notified that they would be tested for them. That list is faulty and limited, but people with little regard for the facts would trump its release as the be-all and end-all in the witch hunt for cheaters. It’s a violation of the players’ rights and an affront to the truth.

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