Remaining names on drug list likely to remain under seal indefinitely

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On Wednesday, in United States v. Comprehensive Drug Testing, the United States Court of Appeals for the Ninth Circuit held that the federal government's seizure of computer files which implicated 104 major league players as steroids users violated those players' Forth Amendment rights. The decision sets the table for a possible review by the United States Supreme Court and it may also prove to be a game-changer as to whether baseball fans ever learn the identities of all 104 names.

In considering the scope of players' Fourth Amendment protection from unreasonable search and seizure, the case more broadly highlights the requisite procedures for when courts issue search warrants and subpoenas for electronically stored information. The facts of the case reveal why.

In 2004, federal agents, acting on a search warrant limited to 10 players who were connected to BALCO, seized a computer directory which unexpectedly contained the names of 104 players. A year earlier, those 104 players had allegedly tested positive in a joint MLB/MLBPA survey test which would determine the adoption of revised drug testing procedures. As a condition of participating in this test, players were assured that their names would not be released and that records containing their names would be destroyed. Instead, the list of names remained on computers stored at Comprehensive Drug Testing, the lab used for the test. As later leaked to media outlets, the 104 names include Alex Rodriguez, Sammy Sosa, David Ortiz and Manny Ramirez. They also include 97 yet-to-be disclosed names.

Writing for the Ninth Circuit, Chief Judge Alex Kozinski opined that when federal agents seek to obtain a search warrant for a computer hard drive, the warrant should only be granted if agents abide by a series of protocols that would effectively limit their search autonomy. Although the U.S. Supreme Court grants a writ of certiorari in less than 5 percent of cases, it's possible that the technology-based legal questions presented by the case, as well as the case's high profile nature, may increase the odds of the Court granting cert.

While U.S. v. Comprehensive Drug Testing serves as an important decision for the Fourth Amendment's application to electronically stored information, it also impacts the potential disclosure of the remaining 97 names, which have been sealed by court order. Provided the Supreme Court does not reverse the Ninth Circuit, the list will likely remain under seal indefinitely, if not permanently. All parties to the litigation, as well as their lawyers and other personnel, are barred from releasing the names. The MLBPA, which is a party to the litigation, thus lacks the legal authority to release the names.

MLBPA could eventually seek a court order that would enable it to divulge the remaining names. The MLBPA could reason that while disclosure might harm the interests of 97 players, it would serve the best interests of the far more numerous number of other MLB players, who would be cleared from suspicion. MLBPA, however, would pursue such a strategy under the peril of being sued by the 97 named players for breach of fiduciary duties. As a labor union, the MLBPA and its officials owe duties of trust and competence to each of the players. Releasing the names would undoubtedly harm the reputations of the named players and possibly jeopardize their player contracts and endorsement deals. Named players could also file a grievance with the National Labor Relations Board.

Unlike the MLBPA, Major League Baseball is not a party to the litigation. If MLB has the list, it could theoretically release it, but doing so would likely trigger a legal action commenced by the MLPBA. As part of the 2003 testing, MLB agreed to an arrangement whereby the players' names would be kept confidential and any records containing their names would be destroyed. MLB's willingness to partake in such an arrangement is significant because the collective bargaining agreement between MLB and the MLBPA imposes duties of confidentially. Although commissioner Bud Selig has not expressed a desire to release the list, the MLBPA would, in all likelihood, immediately file a grievance with the National Labor Relations Board should he do so. It may also argue that the court sealing of the names should effectively extend to MLB, since it co-coordinated the survey testing.

Commissioner Selig could nonetheless argue that the "best interests of the game" authority, as vaguely contained in MLB's constitution (a document originally drafted in 1921 and not one collectively bargained with the MLBPA), accords him sufficient authority to release the remaining names. In Selig's defense, the list has embarrassed baseball and prompted unwanted speculation as to who might be on it. Even worse for Selig, the list returns to the public spotlight every time a name or two is leaked. Selig might understandably feel that the only way the game can move on from the Steroid Era in Baseball would be to release the entire list, a move recently endorsed by Hall of Famer Hank Aaron.

In releasing the names, Selig would encounter a problem: the collectively-bargained CBA likely trumps baseball's constitution in this context. Expect the NLRB or possibly a court to dimly view any use of the best interests of the game clause to justify releasing the names, particularly since the list remains otherwise sealed and also because, according to the Ninth Circuit, the list should never have been obtained by federal agents.

The remaining 97 names may nonetheless become known through leaks. It appears that attorneys familiar with the list, or former law clerks or staff of those attorneys, are selectively divulging names to the media. By doing so, they violate both a court order and their professional and ethical duties. If caught, the leakers would be subject criminal charges for contempt of a court order and the loss of their license to practice law (or, if they are law clerks, the likely loss of the chance of being certified to practice law in any state). While the 104 players who purportedly tested positive damaged the game of baseball, attorneys and law clerks who leak names inflict the same, if not more, damage upon the practice of law and our system of justice.

Should the list nonetheless become known, MLB teams might opportunistically attempt to void contracts of named players, particularly those with onerous contracts. Section 7(b)(1) of Article 3 of the Uniform Player's Contract empowers a team to void a contract if a player fails, refuses or neglects to "conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the Club's training rules." In theory, a team could argue that a player's inclusion on the list violates the "standards of good citizenship and good sportsmanship."

Undoubtedly, the MLBPA would file an immediate grievance opposing any team attempt to void a contract, particularly since the player's name was never supposed to be made public and since no other team has tried to void a contract with an MLB player implicated by steroids.

U.S. v. Comprehensive Drug Testing poses still other implications. MLBPA's failure to protect the names from the government's investigation into BALCO bears mention. While such a failure might call into question whether MLBPA officials adequately satisfied their fiduciary duties, the Ninth Circuit's opinion suggests that fault should lie with the government. For that reason, the MLBPA may be less susceptible to any potential legal challenge brought by a named player.