Court: Steroid Investigators Overstepped their Bounds

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Will the leaks stop now?

A California federal appeals court ruled Wednesday that federal agent Jeff Novitzky and the BALCO investigation team failed to follow the law when they seized the full list of Major League Baseball Players who tested positive for performance-enhancing drugs during the 2003 season.

Novitzky led a raid on the California Date Testing center in April of 2004 as part of his investigation into the Bay Area Laboratory Co-Operative. He entered CDT with a search warrant for 10 players connected to BALCO, but seized a computer directory that contained the names of all 104 players who failed the tests. The directory also had confidential drug tests of players from the NFL, NHL and three private businesses.

“This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause,” Chief Judge Alex Kozinski wrote.

The Major League Players Association, who filed the appeal, said in a statement: “The Court has affirmed lower court rulings that the seizure of individual 2003 testing records violated the constitutional rights of the players and of the players Association.  Anyone who leaks information purporting to contain those 2003 is committing a crime. We are very gratified by this decision and hope that this will finally bring this litigation to an end.”

The Ninth Circuit Court of Appeals ruled that the government only had access to the 10 players connected to BALCO. That list included Barry Bonds, Gary Sheffield, and Jason Giambi. The test results were supposed to be kept confidential as part of baseball’s agreement with the union in 2002. If more than five percent of the players tested positive, more stringent testing would kick in the following year.

Baseball announced the five percent threshold had been reached in November of 2oo3, a month after Novitzky’s raid on BALCO. The test results and urine samples were scheduled to be destroyed, but that process was halted when federal investigators were granted a subpoena for the results of the 10 BALCO clients. After months of legal wrangling, Novitzky raided CDT headquarters and seized the tests of every major league player in April of 2004.

“I have said that Novitzky has been using illegal tactics and not following the law since the day of the BALCO raid,” say Victor Conte, who owned BALCO and has been a consistent critic of Novitzky. “I know that he violated my rights and I believe he has done so with many others as well.”

The list has been under seal in 2004, but the names of Alex Rodriguez, Sammy Sosa, Manny Ramirez, and David Ortiz have been leaked in recent months.

“The risk to the players associated with disclosure, and with that the ability of the Players Association to obtain voluntary compliance with drug testing from its members in the future, is very high,” the judge wrote. “Indeed, some players appear to have already suffered this very harm as a result of the government’s seizure.”

The government is expected to appeal the ruling to the Supreme Court.

Many former players, fans, and media have been clamoring for the release of the remaining names of the list. Current players, including those who have had no ties to the steroid controversy, do not understand that line of reasoning.

“It’s like you almost get punched in every round, and just when you think the round is over the next one starts again,” Twins outfielder Michael Cuddyer said. “You’re a Major League Baseball player, and the casual fan sees this negative publicity and see who’s cheating and not cheating and automatically they associate every Major League Baseball player with that — right, wrong or indifferent. And that’s not fair.”

Other players wanted to see a different list of names: Those who leaked the names to reporters. “Leak the names that leaked the names,” said St. Louis player representative Adam Wainwright. “People are obviously breaking the law acquiring those names, and it’s not the agreement the federal government had with Major League Baseball. Those names were court-sealed. For crying out loud, you can’t release them, period.”

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