FanDuel - WFBC

December 27, 2006

Court rules MLB players can be ID'd for steroids: The names and urine samples of about 100 Major League Baseball players who tested positive three years ago can be used by federal investigators, a court ruled Wednesday — a decision that could have implications for Barry Bonds Whoever Cheated.

posted by wingnut4life to baseball at 03:20 PM - 88 comments

We all pretty much debated Bonds' use to death. What I am most interested in is the names of other players who cheated.

posted by wingnut4life at 03:21 PM on December 27

Is that even a 'debate' anymore? He must have. The mighty Double B sprinkled nandrolone on his pancakes, as far as I can tell. I just don't care as much. 100 ballplayers is, like 12% of the whole population of MLBers. Hugeness.

posted by WeedyMcSmokey at 03:27 PM on December 27

Everyone was wondering why the Player's Union was fighting steroid testing. The Union kept saying, we are not against testing, we are against MLB doing the testing. This is why. Anonymous testing wasn't, in fact, anonymous at all and players and their samples can be identified. That's why the players dont' trust MLB.

posted by bperk at 03:39 PM on December 27

Good. Transparency is the best disinfectant. I don't personally care what promises were made of "anonymity". I want to know who was using. Playing baseball is not a right, it's a privelege.

posted by vito90 at 04:20 PM on December 27

This is going to be very interesting if the results get to the media. Can't wait to see it. Clemens? Bagwell? Pudge? Who knows?

posted by texasred at 04:34 PM on December 27

The ruling from the 9th U.S. Circuit Court of Appeals could bolster the government’s perjury case against Bonds if investigators are able to link his name to a positive test from baseball’s anonymous testing in 2003. Why? It's my understanding that Bonds didn't outright deny using steroids, he denied "knowingly" using them, a point that is made in the article: ...since he testified before a 2004 grand jury that he didn’t knowingly use illegal drugs. How would a positive test confirm that he "knowingly" took steroids? Quest Diagnostics of Teterboro, N.J., one of the largest drug-testing firms in the nation, analyzed more than 1,400 urine samples from players in the 2003 season. That's an awful lot of samples from a single season. It's less than two per player, but more than one per, even for a full 40-man roster for the 30 MLB teams. I wonder how that total came to be.

posted by BullpenPro at 04:46 PM on December 27

Also: Bonds always has maintained he never tested positive Did he say that under oath, or just as a response to media badgering? I'm not defending him, but I'm not clear on how this development would effect Bonds in a legal sense. The article has zero quotes on this decision, no comments at all from any involved parties, just some suggestion from an AP reporter that Bonds might be on this list. There is no evidence that Bonds' name is in any of the related files, or that he will in any way be effected by this decision. I look forward to 1000 comments fueled by some more unwarranted and irresponsible media speculation.

posted by BullpenPro at 05:01 PM on December 27

I don't personally care what promises were made of "anonymity". I'm sure that you'd feel different if it was your anonymity that was being tossed aside like used wrapping paper.

posted by grum@work at 07:18 PM on December 27

This is going to be very interesting if the results get to the media. Can't wait to see it. Clemens? Bagwell? Pudge? Who knows? How about players that played their final year: Ron Gant, Mark Grace, Jay Bell, Rickey Henderson, Dean Palmer, Greg and Mo Vaughn, Matt Williams. Maybe a positive test gave them "incentive" to retire at the end of the season. How about players having their best year? Edgar Renteria, Javy Lopez, Bill Mueller, Trot Nixon? What about previously "pristine" players? Jeter? Pujols? If you're going to throw names around, you pretty much have to include everyone at this point...

posted by grum@work at 07:59 PM on December 27

It would be very interesting if Pujols or Jeter tested positive. Baseball's image would probably take a huge hit.

posted by Ying Yang Mafia at 08:31 PM on December 27

I think this ruling makes for bad law and bad public policy. Why is it so important that these names get out? So the Feds can take down Barry Bonds, who they obviously have a bug up their ass about? So they can embarrass a bunch of guys who make a heck of a lot more money than them? As I've said around these parts before, this whole investigation and prosecution is a huge waste of government resources. And it's not like past events in this circus have shown that the government can do a good job of keeping supposedly secret disclosures or grand jury testimony secret. I don't personally care what promises were made of "anonymity". I want to know who was using. Playing baseball is not a right, it's a privelege. Not having your personally identifiable medical information released without your consent is a right, not a privilege.

posted by holden at 10:36 PM on December 27

Those players who thought there test would be secert should have checked with their agents before allowing this test. Maybe they did. Let the lawsuits begin. This is going to be fun.

posted by odtaylor3 at 11:12 PM on December 27

Not having your personally identifiable medical information released without your consent is a right, not a privilege. Well, that's a pretty good point. The only repercussion of releasing the identities is...well...what exactly? Maybe Bonds perjured himself, and will potentially go to jail, and maybe other guys lied to the media and will be embarrased? Some feathers are gonna get ruffled, some nice guys are gonna look like jerks. Will it clean up the game? It just might, and we might look back in 30 years and call this a watershed moment for the "Clean Baseball Movement"...in which case I'm willing to throw a few guys who earned their way to the big leagues under the bus. How about this compromise. Take each guy who tested positive privately into an interrogation room. Ask each one of them if he knew who Curt Flood was. Those that did get to keep their anonymity. Those who don't know get outed.

posted by vito90 at 11:52 PM on December 27

It would be nice if MLB took a stance on record book standings for those who used the 'roids.

posted by FonGu at 05:03 AM on December 28

f you're going to throw names around, you pretty much have to include everyone at this point... Comment icon posted by grum@work at 7:59 PM CST on December 27 i agree with that grum, like i said, it's going to be very interesting.

posted by texasred at 05:47 AM on December 28

Drug tests, like any other lab result, is considered Protected Health Information and is protected in the US under the Health Information Portability and Accountability Act of 1996. Now the CBA might allow MLB permission to do what it wills with the information gained in drug tests. Knowing how good a job the Players Union does at bargaining, I doubt it. HIPAA doesn't give much protection from the courts however. Any officer of the court, ie Lawyer or Judge, can subpeona your confidential health records. Most healthcare organizations aren't pleased with the fact that lawyers could willy nilly subpeona records. There are regulations regarding the circumstances of the subpeonas, but I have no law background. These records aren't being turned over to the public, ie there isn't going to be a large publicly available database of who tested positive for what when. The general public isn't going to know unless it results in charges being filed. We all know that the feds have never leaked anything, so there is no way we'll find out anything else. Of course, HIPAA has fines and jail time attached to violation of the privacy of protected health information. Remember: You own the information in your health record, but the hospital owns the physical copy.

posted by apoch at 06:06 AM on December 28

I would like to have some kind of input from all the advertizers. The millions the league is taking in must be on the line if it is proven that very few players today are clean. Open the files and let the the public decide if the pushed products are worthy of their money. Subsidizing this crap was going on for too long. Everyone is talking about the squeeky clean game and how it impacts the kids. It was always obvious that more then few players were juiced up. Otherwise we would not have this stalement.

posted by Mr C at 07:08 AM on December 28

It should be pointed out that the collective bargaining agreement between MLB and MLBPA does NOT include the government. That is why they are able to ignore the privacy component of the agreement and release it how they choose. There is no way to legally bind a third party to an agreement ("No telling!") by making an agreement between two other parties, especially if the third party is the FBI/government. However, the MLBPA can probably bring a lawsuit against MLB if the anonymity was compromised by MLB's inability to properly keep the link between player/sample a secret. If there really were tracking numbers and a database with that information, then that's really a serious fuckup by the MLB. It would be nice if MLB took a stance on record book standings for those who used the 'roids. Irrelevant to the discussion at hand. However, I can say that it's almost impossible for MLB to do anything about the "record book" since every single statistic by a batter is tied to a pitcher/fielder, and vice versa. Therefore, unless you can prove exactly which players were using drugs when, and come up with a method that properly extracts this data from the millions of play-by-play records, I doubt you'll see anything change in the record books. I would like to have some kind of input from all the advertizers. If the fans don't seem to give a shit about steroids (and their increased attendance would suggest they don't), then the advertisers sure don't care.

posted by grum@work at 08:04 AM on December 28

The problem that I have with this is that this just seems to be a witch hunt for Barry Bonds. Regardless of what's the outcome, the fact of the matter is, these tests are 4 years old and when the players were taking these tests, they were told that the tests would remain anonymous. I know that just about everyone is interested in finding out if #25 tested positive for steriods but if the players' were told that these tests would never be made public, how can the government just reneg on the binding agreement that the players' and MLB had when these tests were being submitted? I may be alone in this but I truly believe that a person's privacy should never be breached, especially in a case like this. This is just another way for the goverment to treat these players like if they're a sideshow and say, "Well, that agreement wasn't made by us and even if it was, we can do whatever we want, whenever we want and even though the player's were told one thing, we're going to do another thing." I think this is ridiculous and someone needs to step in and put a stop to this. Let's put it like this: If the government can overrule an agreement that was made between two parties, that means that eventually they can do the very same to the public. And for the people that think this is a great idea on what they're doing, imagine if this was being done to you. Not with steriods per se, but within life in general. This may very well be another way for "Big Brother" to invade peoples privacy. Where does it stop?

posted by BornIcon at 08:07 AM on December 28

BornIcon, I agree with you, but the invasion of privacy that you're talking about is already happening to the public, and has for many years. Many, many workplaces in the United States have employee drug testing -- and they tend to be very sloppy with both the justification and confidentiality. The major league ballplayers are at least represented by a union, which does what it can for them, even though it wasn't enough in this case. The average American worker doesn't even have that. So, while I agree strongly with you that it's not right, the "everybody's doing it" argument sadly tends to carry the day where flagrant injustice is involved. IOW, it will be hard to argue for the MLB players' right to privacy on principles that are not upheld for others.

posted by lil_brown_bat at 08:13 AM on December 28

The millions the league is taking in must be on the line if it is proven that very few players today are clean. As Weedy pointed out above, while certainly a substantial number, 100 positive results out of however many players were tested -- it would appear somewhere between 750 and 1400+ -- is definitely not close to a majority, about 13% at the worst. It would appear to be a truer statement to say that very few players are dirty. And if and when those names become public, I suspect it will be very similar to the Grimsley list -- a handful of the usual suspects and a boatload of fringe players, many of whom we won't even remember. How about players that played their final year: Ron Gant, Mark Grace, Jay Bell, Rickey Henderson, Dean Palmer, Greg and Mo Vaughn, Matt Williams. Maybe a positive test gave them "incentive" to retire at the end of the season. Looking at their numbers from 2003, I'd say either their clocks were up or they got a bad batch of junk. What about previously "pristine" players? Jeter? Pujols? Rabble-rousing scallywag. I will not dignify that with a response.

posted by BullpenPro at 08:16 AM on December 28

lbb, I'm going to have to object re: employer drug testing. It is legal for it to be a requirement for employement, and mandated by federal law for certain professions. While I can't vouch for all labs, the one I worked in took confidentialy seriously, the people performing the tests didn't know or have access to the names the samples belonged to and neither did the ones who ran the B samples. The people who did have access to the names, didn't know the results.

posted by apoch at 08:25 AM on December 28

lbb, I in turn agree with some of what your saying but we're still talking about an agreement that was made 4 years ago between MLB player's and MLB itself. In the "real world", we do not have the luxury that these million dollar athletes have but still, what we do have is doctor/patient confidentiality. When that's violated, what other "rights" will we or can we lose? The workplace can enforce drug testing but those tests are also made private regardless of the outcome and an employer can choose to hire you or not based on those tests. If not hired, said employer cannot contact another place of employment and release that information for any reason whatsoever. In this case, the government believes that they're above the law and that they can pretty much do what they want without any repercussions. I just so happen find this to be rather disturbing. Is it just me?

posted by BornIcon at 08:45 AM on December 28

apoch, I'm talking about the employers who are doing the testing, not the labs (although I'm pretty cynical about the labs; it's all about the money with them). There is a common and erroneous belief that employee drug testing in the US only takes place in "certain professions" where you might make an argument of necessity: airline pilots, for example. In fact, many workplaces where employees do nothing more hazardous than sit at a desk and push bytes require drug tests for their employees. They can't tell you what they're looking for. They can't tell you why they're looking for it. They can't tell you what they'll do if they find it. An invasion of privacy -- and that is what drug testing is -- must be supported by a justification of necessity; how can you say that such justification exists when the HR department can't even say why they're testing? And color me cynical, but somehow I don't think that people or organizations that are this fuzzy with their justifications are suddenly going to be models of rigor when it comes to matters of confidentiality.

posted by lil_brown_bat at 09:11 AM on December 28

Let's put it like this: If the government can overrule an agreement that was made between two parties, that means that eventually they can do the very same to the public. And for the people that think this is a great idea on what they're doing, imagine if this was being done to you. Not with steriods per se, but within life in general. The government didn't "overrule" anything. They simply retrieved the information from a computer (which they had a subpoena). They were not part of any agreement made by the MLB/MLBPA, so they don't have to follow it. It's MLB's fault that the information was still available, but technically, they aren't breaking the agreement (since they are not the ones releasing the information). If Person A agrees (in contract) not to talk about what Person B told him, there is nothing that stops Person C (who was also in the room) from telling everyone. Person C was not under contract with anyone to withhold the information. Nor is Person D under any contract to withhold the information he found when he was flipping through Person A's files.

posted by grum@work at 09:35 AM on December 28

MLB made the mistake by associating the anonymous tests with names in the first place. I believe the government seized more information than the subpoena called for, since that seemed to be limited to a few players. Barry's lawyer seems to believe that the government is going to lean on those players and try to get them to spill on Barry (like they did to Grimsley).

posted by bperk at 09:43 AM on December 28

Vito90; Wake up and smell the coke! Playing baseball is not a right nor a privelege. Its a business. Thats the real reason everybody;the players, the owners, and the Commish are against testing and have dragged their feet for years.

posted by sickleguy at 09:48 AM on December 28

The real reason, sickleguy? I suppose it's not possible that people actually mind being told to pee in a cup while somebody watches?

posted by lil_brown_bat at 09:51 AM on December 28

But that's where you're making things fuzzy, grum. There was no Person C or D or any other letter in the alphabet when this agreement was made, it was between MLB and the player's themselves. That's like saying if you were to go to the doctor and the nurse made your results public. Even though there is a doctor/patient confidentiality those that mean that the nurse has the right to reveal your results to the public? I'm just making a theoretical analogy but I'm sure my point is being made clear. The government should be focused more so with the war in Iraq than creating a personal war within baseball itself. This just seems to be a way of distracting the public to something else instead of what's really important.

posted by BornIcon at 09:51 AM on December 28

lbb, I can make no claim to how responsible employers are with the information. They should probably take care, because leaking of results could be in violation of HIPAA, again I'm not a lawyer can't say for sure. BornIcon, your nurse analogy is false because any one who handles your health information is governed by HIPAA. The courts are allowed to compel release of the Protected Health Information (ie drug testing results) to law enforcement given sufficient probable cause. Which is what happened here. The agreement between MLB and the Players Union is irrelevent because the courts decided Law Enforcement has met the legal requirements for gaining access to the information. MLB and the Players Union could file appeals and try to withold the information, but then they'd be in contempt of court.

posted by apoch at 10:10 AM on December 28

An invasion of privacy -- and that is what drug testing is -- must be supported by a justification of necessity; how can you say that such justification exists when the HR department can't even say why they're testing? I think as a matter of general common sense and good employment policies, this statement is correct. As a matter of law, it is incorrect. Private employers can largely do whatever they want, absent certain discriminatory actions and other constitutionally (or legally) prohibited actions. (The situation is different when the government is mandating testing for its employees or is otherwise requiring private parties to conduct testing.) I personally believe employers should really never drug test, but I also pretty strongly believe that private parties should have the freedom to come to whatever agreement they reach. Unfortunately, all of this takes place in a "marketplace" where parties have unequal bargaining power, where there are not a lot of other options if a prospective employee decides not to take a job because he/she doesn't want to work for an employer that tests, etc. -- so the market solution of employees who don't want to work for employers to test just choosing not to do so doesn't work the way it ideally could. But it's also worth noting that a lot of Americans really don't care and are more than happy to give up a bit of their privacy for job security, national security, etc. So maybe the market is working. Tying together what llb said with something that grum said, the problem here as I see it is that the government needs to show a compelling justification to get at this information. (This is a question of law -- the 9th Circuit obviously used a different standard or found that the compelling justification was met in this case.) I don't think they have such a compelling justification -- more broadly viewed, I don't think that the public interests served by this criminal prosecution justify the invasion of privacy that will occur, although it could be argued that there is a justification of necessity in this case in the narrow sense, in that this information is necessary for a possible perjury prosecution of Bonds. But grum is right, the players' recourse (if any) is against MLB for violating its agreement with the MLBPA to keep the tests untraceable and truly anonymous.

posted by holden at 10:18 AM on December 28

Of course people mind getting pissed,especially in a dead end job,lil_brown. But when the average salary is 3 mil,who cares?

posted by sickleguy at 10:27 AM on December 28

Of course people mind getting pissed,especially in a dead end job,lil_brown. But when the average salary is 3 mil,who cares? Maybe you wouldn't, sickleguy, although unless you've been in that position, you can't really say for sure. However, the "reasoning" that it's all about money, and that the only reason for objecting must be to cover guilt, are a big part of what makes these practices problematic. Damn, I feel a column coming on.

posted by lil_brown_bat at 10:46 AM on December 28

But what was the probable cause for the government to step in and deal with issues that has to do with baseball itself, especially 4 years later? Isn't that why baseball has a union, to deal with situations like this? This to me is a cause for concern because there is no fine line here and even if there were, it's being crossed. The people of America are supposed to have something that's called privacy. As soon as that privacy is breached, who are we to turn to? The government? These are the very same people that are taking our rights as a nation and as free people and tossing them down the toilet. This is bigger than baseball.

posted by BornIcon at 10:52 AM on December 28

I hate drug-testing in the workplace. I find the idea unecessarily intrusive and of a faux morality. Of course, I also smoke pot. You can legal mumbo jumbo it all you want. By god, are we a litigious society. Personally I can't abide it outside of the sporting arena - which should only test for performance enhancers. These names should not be released.

posted by WeedyMcSmokey at 10:57 AM on December 28

The players have no grounds to file a grievence against the MLB. No agreement in the world would allow the union to get compensation from the MLB because the complied with a court order. If the MLB voluntarily gave it up, then fine, but they are being compelled by law. Whether or not the court is right to order it, the MLB is safe.

posted by apoch at 11:08 AM on December 28

The players have no grounds to file a grievence against the MLB. No agreement in the world would allow the union to get compensation from the MLB because the complied with a court order. If the MLB voluntarily gave it up, then fine, but they are being compelled by law. Whether or not the court is right to order it, the MLB is safe. You are correct in the sense that the MLBPA has no grounds to sue MLB for complying with a court order, but if MLB's CBA with the MLBPA provided that all tests would be kept anonymous and untraceable, then the players do have grounds to file suit. It's not the act of disclosure that would trigger the liability, it's the fact that the results are traceable in the first place.

posted by holden at 11:14 AM on December 28

which should only test for performance enhancers. Correction: harmful performance enhancers. There's no justification otherwise.

posted by lil_brown_bat at 11:25 AM on December 28

This is straight up bullshit!!the government has absolutely no right to violate what the players agreed to in their CBA.if they agreed to test with anonymity,that's exactly how it should have stayed.do they really think players who were doing anything that may have been illegal would have voluntarily been tested if they knew their names would be given up?Whoever this judge is should be removed from the bench.he/she has no grasp of the concept of a CBA.must be a republican.this is just another effort by the government to try to tear down Barry Bonds.they couldn't get his friend to rat,now they are circumventing a binding union agreement.I would think they have something better to do with their time.maybe instead of looking at cloudy piss,they should try to figure out how to keep all those men and women wasting their lives in Iraq.

posted by mars1 at 11:35 AM on December 28

holden, so the results in question where never supposed to be traceable at all? It was test run to get an aggregate figure on how much abuse there was? I haven't followed all the twists and turns in the MLB drug testing debacle. If that is the case, I can see how the MLB could, and should be found liable. Normal employer drug testing is performed double blind to protect against tampering, but the results match up to a name in the end. I assumed the tests in question were similar in nature.

posted by apoch at 11:38 AM on December 28

Correction: harmful performance enhancers. There's no justification otherwise. According to the Dick Pound FPP, WADA code: " states that a substance must meet two of three criteria to be prohibited: (1) it enhances, or has the potential to enhance, performance; (2) it's an "actual or potential health risk" to the athlete taking it; and (3) it's contrary to "the spirit of sport" (the fairness argument)." I think that is right. I don't think that the test should be harmful, just unfair to other competitors who do not wish to take the drug. For instance, if some performance-enhancing drug comes out and there is no research that indicates that it is harmful, then the presumption would be that it is allowed. Therefore, if it were a drug that had a substantial impact on performance, then everyone might need to take it to succeed. That doesn't seem right. I like the idea better that if it significantly alters performance, it is out unless we know it is safe.

posted by bperk at 11:39 AM on December 28

There was no Person C or D or any other letter in the alphabet when this agreement was made, it was between MLB and the player's themselves. That's like saying if you were to go to the doctor and the nurse made your results public. That depends: did the nurse sign a contract that says she won't reveal patient information? If she didn't (and I can't believe any doctor would hire nurses without such a contract), then she could tell whatever she wants. A better example of the case in hand would be the doctor giving you your AIDS test result, but accidentally leaving a copy of it in the garbage, and some janitor sees the result and tells the newspapers. The janitor is under no obligation to keep any information he learns a secret (UNLESS he had a previous agreement with the doctor's office themselves). The janitor is not bound by the original doctor/patient privilege. If he acquired the information in a legal manner (saw the information in the garbage bin, and didn't just rifle through a locked filing cabinet), then he's free to do with it whatever he wants (as long as he doesn't violate some other contract he may have signed). In this case, the government is not part of the original MLB/MLBPA agreement, and as part of their legal investigation they came upon this information. Therefore, they are not held under any contract to keep it secret, and if revealing this information is part of their court procedings, then they can do so.

posted by grum@work at 11:41 AM on December 28

Think about it this way: You cannot bind someone to a contract unless they signed it. Just because the MLB and MLBPA said something has to be kept a secret, doesn't mean that "everyone else" has to keep it a secret as well. "Everyone else" didn't sign the contract.

posted by grum@work at 11:46 AM on December 28

bperk, the only problem I see with your reasoning is that banning performance-enhancing substances and practices simply because of the "fairness" argument opens up a huge can of worms that neither WADA nor anyone else has the power to sort out. In the name of fairness, should we disqualify athletes who live at altitude, because others can't or don't want to live there? Should we ban green beans, because eating green beans enhances performance and some athletes don't like to eat green beans? How about ginseng -- definitely performance-enhancing, so should we ban it because some athletes don't want to take it or can't afford it? Some athletes might prefer eating little chocolate donuts to eating oatmeal; that's their choice, but you don't ban oatmeal in the name of "fairness".

posted by lil_brown_bat at 12:17 PM on December 28

That depends: did the nurse sign a contract that says she won't reveal patient information? If she didn't (and I can't believe any doctor would hire nurses without such a contract), then she could tell whatever she wants Actually, since a nurse is considered to be under the same legal "umbrella" as a doctor, he/she has no right to reveal what transpired between a doctor and their patient(s). That is the law and is fact since that's a question I asked a doctor friend of mine who has been a MD for over 20 years. As far as your "janitor theory" is concerned, any paperwork that is looked upon by an employee, even if the document is in the trash, it is still protected by law and if said employee were to try and compesate some royalties, they are in danger of not only losing their job but can also be sued and/or arrested for possessing stolen property. Until that paperwork is actually outside of the establishment like in a trash bin, it is still considered to be a confidential document which is why a lot of places that handle confidential documents use shredders.

posted by BornIcon at 12:24 PM on December 28

Some good points have been made, but I still feel that a collectively bargained agreement should be followed, and the government has no right to do otherwise, even if there is a way around it. As for the doctor-janitor example, I would think hipaa would still apply even to the janitor, but I don't know for certain. Also, I would think the doc would be liable for letting the results get out. In this case, MLB will be liable for letting the results get out. USA Today talked to a lawyer who's dealt with these type negotations. Basically says this is going to have a negative effect on future testing as far as CBA's are concerned. I very strongly disagree with this ruling. If results were intended to remain anonymous, they should stay that way, even if some clerical hoops change that. Interesting discussion though.

posted by SummersEve at 12:38 PM on December 28

What if it got stuck to the janitor's shoe, fell off in the parking lot, and the nurse's aunt Thelma picked it up?

posted by louisville_slugger at 01:00 PM on December 28

Funny

posted by BornIcon at 01:04 PM on December 28

No doubt, lbb, that adding fairness into the mix makes it more complicated. However, without it, then you set up a situation where drugs are presumed okay until they are found to be harmful. I would more be than happy with a different standard besides the fairness argument, but not one where everything is okay until it proved harmful.

posted by bperk at 01:11 PM on December 28

MLB and the MLBPA agreed to these tests and agreed they would be anonymous. The purpose of these tests was simply to find out if the percentage of positives was 5% or more, not to find out who was using. The agreement was that if there was 5% or more positive tests then more testing and a more rigid steroid policy would kick in. For MLB and the MLBPA's purposes they did not need names. However, the Federal Government is looking into crimes committed by individuals not whether or not MLB has a problem with steroids. They want names and they know where to get them. That is why the case is the United States v. Comprehensive Drug Testing Inc., 05-10067. How, in the hell, can a conclusion be made that MLB should/could be sued for the release of these results? How are they any more at fault than the MLBPA? They both agreed to these tests and agreed to who would conduct them and how they would be handled. They both forgot that they agreed to identify the existense of criminal activity and then do nothing, legally about it. A CBA cannot replace laws or protect those involved from it. By god, are we a litigious society You sure got that right.

posted by tselson at 01:12 PM on December 28

but I still feel that a collectively bargained agreement should be followed, and the government has no right to do otherwise, even if there is a way around it. You keep ignoring the important point: the government was not part of the collective bargaining agreement. Crazy example: Two organizations sign a collective bargaining agreement not to reveal any information about their private discussions. A member of one of those organizations decides to plan a terrorist strike. During the government's investigation, they get a subpoena to search the email records of the potential-terrorist's organization. According to your theory, the government would not be allowed to look at those email records because it would be circumventing the agreement the two organizations made. This is obviously not true, otherwise criminal organizations would make "collective bargaining agreements" with each other all the time. Until that paperwork is actually outside of the establishment like in a trash bin, it is still considered to be a confidential document which is why a lot of places that handle confidential documents use shredders. Not true. If the document is left in plain sight and someone is visiting the location (say, another patient) and sees the information, they are not covered by any agreement between the patient/doctor's office. That "visitor" can then reveal the information to the press (who can then decide whether it's legitimate or not).

posted by grum@work at 01:12 PM on December 28

Grum, the paper is still considered confidential. The visitor is NOT governed by HIPAA, but the office would be in violation for allowing the visitor access to the document. The problem with the drug testing the MLB did was that if it was supposed to be annonymous the drug testing facility should not have gotten any record of the names and the MLB should not have kept records of which sample number went with which player. Then the government could supboena the results, but there would be no names attached and secrecy would have been maintained. Now if you want to argue that the MLBPA has a right to sue the MLB for damages due to the revelation of names to the feds, you'd have basis, not for the violation of their attempt at secrecy, but for incompetence in carrying it out.

posted by apoch at 01:21 PM on December 28

Grum, the paper is still considered confidential. The visitor is NOT governed by HIPAA, but the office would be in violation for allowing the visitor access to the document. The problem with the drug testing the MLB did was that if it was supposed to be annonymous the drug testing facility should not have gotten any record of the names and the MLB should not have kept records of which sample number went with which player. Then the government could supboena the results, but there would be no names attached and secrecy would have been maintained. Now if you want to argue that the MLBPA has a right to sue the MLB for damages due to the revelation of names to the feds, you'd have basis, not for the violation of their attempt at secrecy, but for incompetence in carrying it out.

posted by apoch at 01:21 PM on December 28

I suppose it's not possible that people actually mind being told to pee in a cup while somebody watches? Getting back to this point -- I wouldn't. I don't have anything to hide aside from the size of my gentalia, and you can take that however you like. I agree that drug testing has gotten out of hand (do I really care if the kid behind the counter at Blockbuster is stoned?), but it's the right of a private business to govern its employees as it chooses, within reason. You don't want to pee in a cup, feel free to find a job somewhere that doesn't ask you to. I'm not sure where the "injustice" is in that.

posted by wfrazerjr at 01:39 PM on December 28

Grum, the paper is still considered confidential. Agreed. The visitor is NOT governed by HIPAA, but the office would be in violation for allowing the visitor access to the document. Correct. Now if you want to argue that the MLBPA has a right to sue the MLB for damages due to the revelation of names to the feds, you'd have basis, not for the violation of their attempt at secrecy, but for incompetence in carrying it out. Also correct, which is what I said many comments before. My discussion has been that the government hasn't broken any rules/laws if they decide to reveal (in court) the names of those that failed the tests. You don't want to pee in a cup, feel free to find a job somewhere that doesn't ask you to. I'm not sure where the "injustice" is in that. First they just want you to pee in a cup for a job. Then they'll want you to give a vial of blood in order to ride an airplane. "If you don't want to give a blood sample, feel free to find another method of travelling from New York to Phoenix." but it's the right of a private business to govern its employees as it chooses, within reason. Some would say that peeing into a cup and being scrutinized for your private habits ("Hmmm. Wfrazrjr doesn't use pot, but it that burning sensation when he pees must be a real bitch...") that have no effect on your job performance would be considered "beyond reason".

posted by grum@work at 01:45 PM on December 28

I'm not sure where the "injustice" is in that. The presumption that the playing field is level. It's a helluva lot easier to say "just go get another job" than to actually do it - such options are not automatic. Also in the "just do this" category: "Just stop doing drugs"; or "just trust that they're operating the testing program responsibly and accurately"; or "just trust that your test information is kept confidential" or any of that crap. It's not so much a slippery slope as it is a terrible non-performance related controlling technique.

posted by WeedyMcSmokey at 01:48 PM on December 28

Grum, drug test results are very short conversations. Positive/for what or Negative.Thank you, goodbye. There aren't jokes and there isn't any information other than the above exchanged. I thought you told fraze you'd keep that a secret. You work for the Feds don't you.

posted by tselson at 01:59 PM on December 28

...criminal organizations would make "collective bargaining agreements" with each other all the time. But we're talking about sports here which is where people are failing to understand, not organized crime. Now if the New York Yankees were robbing banks on the side, the government needs to step in. I for one do not see a team called the Florida Money Launderers or the Las Vegas Hitmen (nevermind the XFL...that one didn't count). My point is that, we're talking about a few athletes that are cheating to gain an upperhand over their opposition, not a group of mass murderers (OJ doesn't count either) or a cult group that are selecting people to move to Waco, Texas. This to me is just something to deter people from what's really important and what needs to be looked at, like the people that die everyday from big businesses that manufacture cigarettes. Now there's something the government should be focusing on instead of baseball.

posted by BornIcon at 02:01 PM on December 28

My point is that, we're talking about a few athletes that are cheating to gain an upperhand over their opposition, not a group of mass murderers Dude, steroids are illegal. They aren't just cheating they broke the law.

posted by tselson at 02:15 PM on December 28

BornIcon: I agree that the government is spending far too much time and effort to prosecute Barry Bonds, but the time and effort that they spent in this case was, in fact, perfectly legal. This to me is just something to deter people from what's really important and what needs to be looked at, like the people that die everyday from big businesses that manufacture cigarettes. Now there's something the government should be focusing on instead of baseball. I also agree with this statement, except that the government should be prosecuting big and little cases, regardless of how they affect the public as a whole. Otherwise, you'd only have automobile, cigarette, asbestos and prescription drug cases in courts, and no one would be prosecuting murder trials (since it only affects a miniscule amount of people). Dude, steroids are illegal. They aren't just cheating they broke the law. Actually, the users didn't break the law. The dealers broke the law. Barry Bonds can't be prosecuted for using steroids, only if he is caught in possession of the steroids or attempts to give/sell them to someone else. A positive drug test, in and of itself, is not proof of any criminal act.

posted by grum@work at 02:20 PM on December 28

Grum, I stand corrected.

posted by tselson at 02:23 PM on December 28

Grum, I'm still going to disagree. The cornerstone of the agreement -- the way that they got the players' ass'n to agree -- was, "Okay, look, there is no individual in this, it's a big group piss, and if it comes up with x amount of positive tests, then we'll do individual tests." So all the folks whose collective privacies are now being violated shouldn't have individualized. And just because they were through the mistakes of a third party does not mean those privacies should be voided. Here's all 115 pages of the decision (pdf). I jumped around (head hurrrts) and tend to agree with the dissenting opinion... But that's likely a preconceived opinion on my part since I have no idea what the hell Temura and Ransden are. Also, would it be inappopriate to bring up Dontrelle Willis and his willingness to piss just about anywhere?

posted by SummersEve at 02:26 PM on December 28

I also agree with this statement, except that the government should be prosecuting big and little cases, regardless of how they affect the public as a whole. Otherwise, you'd only have automobile, cigarette, asbestos and prescription drug cases in courts, and no one would be prosecuting murder trials (since it only affects a miniscule amount of people). This BALCO investigation has long since gone off the deep end. First, they already got the king pins and have shot down the laboratory. Now, they are spending all this time and money going after the users -- ostensibly under a perjury charge. This has to be the most resources ever spent on a perjury charge or, for that matter, any victimless crime. It is ludicrous at this point, and seems like nothing but a vendetta.

posted by bperk at 02:30 PM on December 28

This has to be the most resources ever spent on a perjury charge Methinks Ken Starr has that record.

posted by SummersEve at 02:32 PM on December 28

Methinks Ken Starr has that record. I stand corrected.

posted by bperk at 02:40 PM on December 28

But that's likely a preconceived opinion on my part since I have no idea what the hell Temura and Ransden are. Temura, come on man, that's how I get my shrimps fixed down at Hong Phat's Asian Soul Food Emporium! That other shit, you're on your own.

posted by The_Black_Hand at 03:10 PM on December 28

So all the folks whose collective privacies are now being violated shouldn't have individualized. And just because they were through the mistakes of a third party does not mean those privacies should be voided. Actually, it was the mistakes of the second party (MLB), not the third party (FBI/IRS or the drug testing lab), that allowed them to be identified. If MLB wanted true anonymity, they'd have never kept the names of those tested (or some method of linking them to samples). Private agreements between two parties just cannot include unmentioned/unsigned third parties. Otherwise, you'd have absolute chaos in contract and civil law. I agree, however, it sucks that 100 people are going to get screwed over by this mistake. This BALCO investigation has long since gone off the deep end. Definitely.

posted by grum@work at 05:18 PM on December 28

Actually, it seems less like MLB's fault and more like dumb luck and a debatably illegal search and seizure of CDT which was then used to get records elsewhere. (page 5) The government then reasoned that because CDT5 and Quest6 had tested urine samples from MLB players during 2003, those entities—rather than MLB—had to possess the samples and testing records in question. Therefore, the government issued subpoenas both to CDT and to Quest, seeking drug testing information for all MLB players. The subpoenas were returnable on February 5, 2004, but the government extended that date to March 4, 2004, after CDT and Quest promised not to destroy or to alter any of the evidence requested. (PPs 105-106) I strongly disagree with the new procedure adopted by the majority to supplant Tamura. The majority proposes that the government may seize all computer databases containing intermingled evidence, and if an objection is raised, must then turn the material over to a magistrate judge for review. Under the majority’s new rule, the magistrate judge is to allow the government to retain the data if it is not feasible to segregate material responsive to the warrant without altering the original character of the information. 1 The majority’s remedy violates the “neutral and detached magistrate” requirement. As the Supreme Court observed many decades ago: So basically, if I'm getting this right, the courts have ruled that a computer is basically "in plain sight" and they can take the whole computer because they can't separate out what is actually covered in the warrant. So now instead of the original 10 players' data they requested under the warrant, they've got 100, because they realized what was in the computer. So anything that pops up on a computer that might be slightly covered by a warrant will now allow that computer to be seized and all data can be studied. I've written that very poorly, but this is wrong on so many levels.

posted by SummersEve at 06:47 PM on December 28

Also a section concerning the testing and how it was written up... All of this is quoted from the decision, the italicized part is quoted from the CBA... (page 103) The collective bargaining agreement contains numerous provisions assuring confidentiality. For example, the section concerning the testing protocol provides: The confidentiality of the Player’s Participation in the Program is essential to the Program’s success. Except as provided in Section 8, the Office of the Commissioner, the Association, HPAC, Club personnel, and all of their members, affiliates, agents, consultants and employees are prohibited from publicly disclosing information about the Player’s test results, Initial Evaluation, diagnosis, Treatment Program (including whether a Player is on either the Clinical or Administrative Track), prognosis or compliance with the Program. The collective bargaining agreement specified in great detail the manner of collection of data and, in particular provided that: At the conclusion of any Survey Test, and after the results of all tests have been calculated, all test results, including any identifying characteristics, will be destroyed in a process jointly supervised by the Office of the Commissioner and the Association. Sorry for the length and the density.

posted by SummersEve at 06:54 PM on December 28

Sorry for the length and the density. Please, no apologies. You've basically distilled some of the important information from the documents that (I'm guessing) most of us haven't read all the way through. It does seem that: 1) MLB and MLBPA screwed up by not getting those results destroyed some time in 2004. 2) The government does seem to be riding roughshod over some basic search-and-seizure rules. I'm still sticking to my statements about anonymity, contracts and third parties, but that was based on the assumption the information was acquired legally.

posted by grum@work at 07:58 PM on December 28

If this discussion has pointed anything out, it's that the right to privacy issue in this country is becoming more and more a gray area. I won't sit here and say that any athlete, pro or otherwise, deserves to skate scot-free for taking any steroids or any other illegal performance-enhancing chemicals, but concepts like search-and-seizure, due process of law, and liberty ARE protected and mandated by this country's Bill of Rights. Under Bush's regime presidency and Congress this decade, it seems like these basic rights are being chipped away little by little. What's next, the right to free speech? Heck, my next post to SpoFi will come from a jail cell. Excuse the political nature of these comments, but the concepts of this topic go hand-in-hand with our rights as U.S. citizens here. Never mind what the Collective Bargaining Agreement says, the last time I looked, U.S. athletes were protected by the Constitution too.

posted by NerfballPro at 10:43 PM on December 28

Anonymity??? We pay these guys their salaries not the owners. I don't usually buy shirts for $100.00, or a seat for $50.00, or A beer for $6.00, a hot dog for $3.00. But if I go to a ball game, I will be expected to. If that is what the players EXPECT from me. I EXPECT my players to be drug free, and have some morality about themselves. Not to start a completly different debate but, some want to compare Bonds, McGwire, Sosa etc...To Babe Ruth. Babe Ruth played drunk and fat (Sorry Mr. Ruth and his family) the afore mentioned players are playing under the influence of performance enhancing drugs...(Allegdedly). In the county I live in, if you are processed in the county jail your name appears in the paper, whether your guilty or not. I say these guys have been sheltered and babied long enough. Print the names, suspend them for a year for a first offense. Lifetime suspension for a second offense. Cause everyone deserves a second chance not a third.

posted by 3pounddickey at 11:03 PM on December 28

Anonymity??? We pay these guys their salaries not the owners. I don't usually buy shirts for $100.00, or a seat for $50.00, or A beer for $6.00, a hot dog for $3.00. But if I go to a ball game, I will be expected to. If that is what the players EXPECT from me. I EXPECT my players to be drug free, and have some morality about themselves. 1) The owners pay the salaries, not you. Unless you own a professional sports team, I guarantee you haven't written a single cheque that directly paid the salary of a player. 2) Ticket prices and concession stand prices have absolutely nothing to do with player salaries. Basic economic theory proves that fact. If you don't believe it, or need it to be explained to you, I'm sure someone can do that. 3) No one is expecting you to pay for those things. You WANT to pay those prices, otherwise you wouldn't. 4) Do you expect the entire entertainment community (singers, writers, actors, directors, special effects, union shop) to be drug free and "have some morality about themselves"? If not, then why expect that from athletes, who are nothing more than entertainers?

posted by grum@work at 12:05 AM on December 29

Serious thanks to SummersEve for digging through the paperwork, it looks like law enforcement pulled an end around the constitution then got a judge to say it was OK. Of course if MLB and the MLBPA had destroyed the records or taken the samples anonymously, all the feds would have discovered is "Player A was higher then Chris Anderson while Player B was clean." The judicial system in this country is based on two simple precepts: Innocent until proven guilty and less popularly known the ends do not justify the means. The latter is why there are Constitutional protections against illegal search and seizure. That's why the Supreme Court gave us Miranda Rights. The ends do not justify the means because if they did the judicial system wouldn't be a system of law and order but a system of order no matter what the cost. The single greatest purpose of the Bill of Rights is to protect the people from the actions of the government. You can have security or privacy, but an increase in one decreases the other. This ruling is another bit of private privacy taken away in the name of public security. So without further political ramblings: I hope the MLB and the MLBPA appeal this decision and gets struck down. Not because I support illegal drug use in the sports (because I don't), but because I support the rights of individuals to privacy. I support the requirements that make law enforcement harder because it decreases the likelihood that innocent people will be punished.

posted by apoch at 02:42 AM on December 29

OK Grum, if everyone stops going to baseball games and buying any MLB merchandise and see if they can pay Barry Zito. They can't. So in essence the fans pay the salaries. The owners of MLB teams are not rich enough to pay a hundred million dollars a year without some revenue. Shit even Bill Gates would go broke. But I do stand corrected they can not go back and make the 100 names public. Or punish them. There was an agreement to the silence of who came up positive. But I hope in the future they go public with the names of any violators and hand out severe penalties. #2. New stadiums have a part in those concession prices but where do those owners come up with the money for those salaries??? As for your #4. Hell yes I expect them to be drug free as well. I will admit I find humor in the fact that Willie Nelson is still smokin weed at the age of 73. Maybe at 73 I will have to alter my reality to enjoy life. The connection. If you have to alter your chemical make up to be a better baseball player maybe you should not be a baseball player. Drugs are illegal. People who take drugs are breaking the law.

posted by 3pounddickey at 06:55 AM on December 29

OK Grum, if everyone stops going to baseball games and buying any MLB merchandise and see if they can pay Barry Zito. They can't. So in essence the fans pay the salaries. That's a big "so what". Ultimately, consumers fund every enterprise that's not tax-funded (and let's not forget that a nontrivial amount of public money goes into sports in the form of stadium deals and the like). Presumably you do something for a living; how would you feel about Joe Consumer of your product getting up in your face and demanding that you "be drug-free" and "have some morality about [yourself]"? Drugs are illegal. People who take drugs are breaking the law. Really? Tell that to all the people taking Viagra.

posted by lil_brown_bat at 07:30 AM on December 29

NerfballPro: If this discussion has pointed anything out, it's that the right to privacy issue in this country is becoming more and more a gray area. Good points; one other thing that's changed, though, is snooping technology. Whether it's the ability to tell if you've smoked dope in the last month from a urine sample, or the technology to tap your phone, or a bunch of little search-ferrets to see what you've been up to on the internet, the ability to invade privacy has grown enormously in the last generation or so. If the right to privacy is to be preserved, here or anywhere, it must be through a sound understanding of the principles that underlie that right. Otherwise, it's the same battle to fight all over again any time someone invents a new intrusive technology -- and each time, it seems, our collective understanding of these rights is duller, and our ability and will to champion them is diminished.

posted by lil_brown_bat at 07:35 AM on December 29

The biggest problem facing the protection of our privacy is the "Well if you don't have anything to hide," attitude. It completely misses the point. I have the RIGHT to privacy. The government does NOT have the right to pry. Privacy is supposed to be assumed unless the government can provide sufficient evidence for the need to supplant that right. The evidentiary threshold is getting too low.

posted by apoch at 07:47 AM on December 29

Dude, steroids are illegal. They aren't just cheating they broke the law Actually, the users didn't break the law. The dealers broke the law. (Someone) can't be prosecuted for using (drugs), only if he is caught in possession of (drugs) or attempts to give/sell them to someone else. Thanks grum, that is fact. Which is why most drug offenders may get rehabilitaion instead of jail time but there is no rehab for a dealer. Drugs are illegal. People who take drugs are breaking the law Again, only if they're caught in possesion of an illegal substance are they breaking the law. Using drugs doesn't make you a criminal, just look at people that smoke cigarettes or that drink alchohol, those are also drugs, just legalized so that the government can tax and profit from them.

posted by BornIcon at 08:06 AM on December 29

I have the RIGHT to privacy. Actually, that's not exactly true. Our rights are enumerated in the Bill of Rights. There is no right to privacy. The Supreme Court has sort of built one, but if the Supreme Court gives it to you, then they can surely take it away.

posted by bperk at 08:32 AM on December 29

#2 - New stadiums have a part in those concession prices but where do those owners come up with the money for those salaries??? They get the money from concession stands, ticket sales, media deals and other ancillary revenues. However, the prices in those concession stands, tickets sales and other revenues have absolutely nothing to do with player salaries. Here is a quick way to understand this fact: Assume a team has a 50,000 seat stadium. If they charge $1 a ticket, they will sell 50,000 seats per game ($50,0000 in revenue). If they charge $2 a ticket, they will sell 50,000 seats per game ($100,000 in revenue). If they charge $10 a ticket, they will sell 47,000 seats per game ($470,000 in revenue). If they charge $20 a ticket, they will sell 37,000 seats per game ($740,000 in revenue). If they charge $30 a ticket, they will sell 29,000 seats per game ($870,000 in revenue). If they charge $40 a ticket, they will sell 16,000 seats per game ($640,000 in revenue). If they charge $50 a ticket, they will sell 13,000 seats per game ($650,000 in revenue). If they charge $75 a ticket, they will sell 7,000 seats per game ($525,000 in revenue). So, the best way to maximize their revenue is to sell tickets in the neighbourhood of $30/ticket. The question to you is: How big is the salary for the team I am discussing? The answer is: It doesn't matter, as team salary has no effect on the price of tickets. You can apply this same logic when looking at the price of concession stand items, parking lot prices and media deals. The end result is the same: Team salaries do not affect the price of tickets/concessions.

posted by grum@work at 08:53 AM on December 29

The owners of MLB teams are not rich enough to pay a hundred million dollars a year without some revenue. Shit even Bill Gates would go broke. Actually, if Bill Gates were to sell off only his Microsoft shares right now and receive no other source of income (now and in the future, including basic bank interest on his money), and were to pay the salary of the 2006 New York Yankees every season, he could do so for the next 120 years. Rogers Communications owns the Toronto Blue Jays. They had an revenue of $7.48billion (Cdn) for the last fiscal year. I'm pretty sure they could pay for the salaries of the Toronto Blue Jays for many, many years.

posted by grum@work at 08:59 AM on December 29

Actually, if Bill Gates were to sell off only his Microsoft shares right now and receive no other source of income (now and in the future, including basic bank interest on his money), and were to pay the salary of the 2006 New York Yankees every season, he could do so for the next 120 years. Then...then...why the hell doesn't he???

posted by lil_brown_bat at 09:02 AM on December 29

"Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Okay, so no explicit right to privacy, but the fourth amendment obviously protects our privacy against government intrustion without probable cause.

posted by apoch at 09:08 AM on December 29

Okay, so no explicit right to privacy, but the fourth amendment obviously protects our privacy against government intrustion without probable cause. Sure, a judge has to issue a warrant, which is not really a huge hurdle. In this case, despite the fact that a case was pending contesting the subpoena and that the government didn't really believe that any documents were going to be destroyed, the judge signed off on the warrant anyway. Anyway, there are so many exceptions to the freedom from unreasonable search and seizure that it isn't as strong as the it sounds.

posted by bperk at 09:21 AM on December 29

It isn't as strong as it should be, I agree. I guess my point is, I have nothing to hide, so the government shouldn't have sufficient evidence for a warrant so they shouldn't be able to search my house. The government has to prove they have enough reason to search, they don't have the right to barge in wherever they feel. The protection this amendment offers has been eroded, and will be eroded, and this decision eroded it further. It isn't going to get better because a lot of people are willing to accept intrustions into other peoples privacy under the "If you have nothing to hide" argument.

posted by apoch at 09:28 AM on December 29

What's worse is that the primary way the 4th amendment is enforced is by suppressing evidence that was found. So, if the government stomps into your house and doesn't find anything anyway, then what recourse do you have? Civil lawsuit? It is a rather common problem in the poor areas of DC. They come in destroy your house looking for something, cut up all your mattresses, then realize that they have the wrong apartment number. Oops.

posted by bperk at 09:38 AM on December 29

They come in destroy your house looking for something, cut up all your mattresses, then realize that they have the wrong apartment number Which is exactly what happened to this family in Ohio (I think it was in Ohio). The Feds obtained a search warrant for a household that was downloading kiddie porn unto their computer and ended up raiding a home that contained a husband and wife along with their children. Lo & behold, they raided the wrong home. The house they were looking for was a street over. Now that's a crime.

posted by BornIcon at 09:57 AM on December 29

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