The Real Questions About Steroids
Here are the questions you should be asking now that the New York Times has added Manny Ramirez and David Ortiz to the list of players allegedly testing positive for steroids in 2003.
1. Where is the government investigation into the leaking of information currently under seal?
The list of the 104 players who tested positive for steroids is at the center of a case now being decided by the Ninth Circuit Court of Appeals in California. Those results were supposed to be confidential. The courts put them under seal. Any officers of the court —and that includes lawyers and clerks of Appeals Court Justices — who leak this information to the media is breaking the law. Troy Ellerman, the lawyer who leaked the Bonds and Giambi Grand Jury testimony, is finishing out his 2 1/2 year prison sentence for that crime.
One former high-ranking Justice Department official recently told me that just because we have not heard about an investigation does not mean one isn’t being conducted. I’m not buying. The Balco investigators had hair triggers on subpoenas for anyone who interfered with their investigation. The leaks started five months ago with the outing of Alex Rodriquez. None of the reporters involved have been hauled into court and asked for their sources. Why not?
2. What is taking the Ninth Circuit so long to decide this case?
This all started in April of 2004 when IRS agent Jeff Novitzky grabbed the test results from the drug lab holding baseball’s 2003 test results. He said they were part of the Balco investigation. It’s a long story [read about it in stories I wrote for ABCNews.com http://abcnews.go.com/Sports/LegalCenter/Story?id=6968609&page=1, and ESPN Magazine http://sports.espn.go.com/espnmag/story?id=3896270 ] but it boils down to this: Novitzky violated the Fourth Amendment against illegal search and seizure. He also misrepresented his case to the judge who gave him a search warrant.
Three federal judges instructed the government to return the results, including Balco Judge Susan Illston, who singled out Novitzky, calling his actions “a callous disregard for the Constitution.” Another asked if the Fourth Amendment was repealed. The Ninth Circuit has had this case since December. It’s time to render a decision, one that is bound for the Supreme Court.
Who’d have imagined that baseball would be the battlefield for the Fourth Amendment?
3. Are reporters actively soliciting sources for the test results?
It makes a difference. If a source gives the media documents under seal, the reporter is on safe ground. If the reporters are pushing sources to break the law, they are complicit.
4. When are sportswriters and fans going to stop asking for the entire list of 104 players be revealed?
Reality check time: this is not a sports story. This is a story about the law, the conduct of law enforcement officers, and the U.S. Constitution. Being rich and famous does not mean you forfeit your rights under U.S. law.
These tests were done under a collectively bargained promise of confidentiality. That agreement was violated. The courts further put the test results under lock and key. That has been violated as well. Think what you will about athletes taking illegal drugs, but in this case the rich and famous are the victims.
5. When does this end?
The Balco investigators filed an appeal in the trial of Barry Bonds last March, asking that evidence Illston threw out be allowed back in. Bonds was indicted in November of 2007. This appeal, which is almost never granted, could take up to 18 months. Bonds’ reputation is in ruins, his earning potential is next to nil, and he will never play baseball again. Guilty or not, he has received a punishment far in excess of what he would received in a court of law.
Fans have gotten over their outrage now that it’s clear that steroid use was widespread, eliminating the hand wringing over what to do about the record book. (For most, this was always about entertainment.) Baseball has a drug testing plan in place; it’s not perfect, but no testing plan will ever change human nature. The Balco investigation has already cost more than $50 million, the meter is still running, and that’s not even counting the money and manpower spent chasing after Roger Clemens.
In a country with a few more urgent priorities, isn’t it time we finally put an end to this story?