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Maybe in the end when everything about this blistering baseball season has been said and done the most noteworthy utterance -- be it with a bat, ball, or pen -- will have come from a committee of legal grey beards in a California courtroom. The 11 characters in question form the Ninth U.S Circuit Court of Appeals and they have just dropped a bombshell, even if the game’s ever-loving fans hardly noticed.
That’s too bad because it’s all actually more exciting than any old unassisted triple play.
In a ruling that constitutional scholars already claim has huge historical clout much beyond the foul lines of your neighborhood ballpark, the court not only rejected but strongly denounced the antics of the federal government investigators who seized the results of the drug test survey performed on major league baseball players in 2003. Reputedly, 104 players tested positive for steroids but the test was supposed to be secret with its results being protected. So far eight unlucky or wrongfully targeted players on that list have been “outed.”
The ruling obviously comes too late for Alex Rodriguez, the only one of the “outed-eight” to actually cave and admit his transgressions in meaningful detail. Though Rodriguez is the only baseball players to not only fess up but also fling himself on the mercy of the court of public opinion, he will continue to be denigrated until the cows come home.
Others, including Sammy Sosa and those loveable Boston bash-brothers, Manny and Papi, now appear to have been smart to have stonewalled because the appeals court ruling demands all the test results and samples must now be destroyed, much as they were supposed to have been five years ago. It also bans prosecutors from using any of the information in court proceedings or investigators from inquiring any further into the alleged transgressions.
With government now being shackled on the issue, it isn’t likely that any other authority, including Major League Baseball itself, or any other interested parties, including the wise guys who have been anonymously slipping names to the media, would dare defy the court any further. It would be a serious mistake.
Thus A-Rod emerges as the big loser while Papi and Manny get off easy. Ramirez and Ortiz need not answer another question nor utter another word on this matter if they choose and, one suspects, that will be precisely the case. In a way, the unfortunate Rodriguez who may have had the most to lose takes the fall for the entire merry band of 104 probable drug cheats. Only in the howling depths of Red Sox Nation might that be considered fair, let alone just.
Of course, the Justice Department could appeal to the Supreme Court. But people who know about these things seem highly doubtful that will happen. The ruling -- by a margin of 9-2 -- was not a surprise and really something of a slam-dunk. It upheld previous rulings by other federal judges connected with the case from three lower courts. Moreover, the reasoning was consistent with established legal precedents having to do with the issue of probable cause and the protections of the Fourth Amendment and our very sensitive national aversion to unlawful search and seizure, especially by government bullies. The betting, by those who know, seems to be that this case is over.
It is only unfortunate it took so long. The ruling has been pending nine months, as we have been repeatedly reminding you in this space. In the meantime, damage has been done that should be deplored because it was random and arbitrary, as we have been insisting in this space for the last eight months. How could a fair-minded person approve of Rodriguez being tried and convicted by Sports Illustrated, no matter how deep one’s belief that the man is some sort of jerk? Which, even if it were true, has nothing to do with anything in the end?
Of course, while the case was pending the infamous list with its 104 suspects was supposedly sealed by court order. Of this fundamental fact, Sports Illustrated was well aware when it unveiled A-Rod and The New York Times was even more aware when it rang up Sosa, Ramirez and Ortiz. If that amounts to defiance of the court there are no rebukes being handed out to the media. Of course, the offended players could sue. But it would be a monumental task as well as almost certainly hopeless. Who needs it? If there’s a double standard at work here then so be it. Score one for us, I guess, although many will go on questioning why we should be above the law and who can blame them.
Specifically, the appeals court ruling states that when federal investigators seized urine samples from two California drug testing facilities in 2004 they “far exceeded” the limits of their search warrant which only gave them access to the drug test results of 10 players associated with BALCO, the notorious fitness center then being fiercely investigated by an IRS squad led by Agent Jeff Novitzky. The most important of those players and the main target of Novitzky’s furious pursuit was, of course, Barry Bonds.
Their warrant allowed them to grab the records of 10 players but they walked off with a database that -- according to the court -- included “the confidential drug testing results of hundreds of other professional baseball players, 13 other sports organizations, three unrelated sporting competitions (track and field), and a non sports business entity.” Some estimate the rights of well more than a thousand individuals were violated by what the court terms “an unlawful seizure” by hyper-motivated federal agents. But no one is sure. It could be several times more.
It was a severe scolding for Novitzky and his posse who, by the way, are still out there relentlessly chasing down sporting drug cheats, now under the aegis of the Food and Drug Administration. They busted a Northern California designer steroid lab just a month ago. There are those who consider Novitzky a modern-day Elliot Ness but sometimes you wonder, “Have they nothing better to do?”
Whatever, speaking for the Ninth Circuit Court, Chief Judge Alex Kozinsky declared the actions of the agents to be “an obvious case of deliberate overreaching” and an effort “to seize data to which it lacked probable cause.” He further termed it “a significant test” of the government’s search and seizure powers in “the digital age.” He went on to offer guidelines to government inquisitors for the conduct of raids that involve computer records.
Judge Kozinski writes: “Everyone’s interests are best served if there are clear rules to follow that strike a fair balance between the legitimate needs of law enforcement and the rights of individuals and enterprises to the privacy that is at the heart of the Fourth Amendment.”
It is in these ways that the implications of this seemingly mere baseball case are huge with a potential impact on every household given how in this “digital age” all our records on every aspect of our being are going to end up in some computer and now the government has been informed that you just can’t grab this stuff willy-nilly.
You can thank the Baseball Players Association, which has been getting kicked around to a fare-thee-well lately. It was the MLBPA that fought the issue mightily at considerable expense, if only to make up for certain of its blunders along the way like the failure to destroy the records five years ago which it could and should have done.
Said Elliot Peters, the union’s lawyer; “It should be a great comfort for everyone to know that when the government goes into a business, a doctor’s office, a clinic, or a hospital for one person’s records it can’t grab a database with the records of a million people. This ruling is a good thing for everyone.”
And to think you actually thought all of this was just more dumb stuff about spoiled and wayward ballplayers. Somehow you never pictured A-Rod as an instrument of the protection of our precious civil liberties. But then Clarence Gideon was an even more unlikely angel.