By Michael McCann
June 16, 2009

Two down, 102 to go.

According to the New York Times, Sammy Sosa, like Alex Rodriguez, was among the 104 players who tested positive for steroids in 2003.

Keep in mind, this infamous and mostly confidential list of 104 was never supposed to exist. All of the tested players were assured by their union, the Major League Baseball Players' Association, that their names would not be disclosed. The players were only tested as part of a sample test, as agreed to by Major League Baseball and the MLBPA, to determine whether a sufficient number of players tested positive in order to trigger mandatory steroids testing. The names associated with the positive sample tests were allegedly irrelevant; all that mattered was whether more than 5 percent of players tested positive. Any incriminating materials -- be they paper documents or computer files -- were to be destroyed immediately.

For reasons that remain unclear, at least some of those materials were not immediately destroyed. Specifically, a computer at Comprehensive Drug Testing Inc., one of two labs previously used by MLB for steroids testing, contained the names. And unfortunately for the 104 players, Jeff Novitsky and other federal agents investigating ties between BALCO and 10 specific MLB players seized the computer and found the damning files. The MLBPA and the federal government are litigating the legality of the agents' seizure in U.S. v. Comprehensive Drug Testing, with the U.S. Court of Appeals for the Ninth Circuit set to issue an opinion. The MLBPA contends that the government only had probable cause to investigate the 10 specific players, meaning the other players suffered an unreasonable search and seizure under the 4th Amendment. The government, in turn, asserts that all of the evidence was intermingled and no player's 4th Amendment rights were violated.

Regardless of the Ninth Circuit's forthcoming decision (or of an unlikely review by the U.S. Supreme Court), a number of people are aware of the remaining 102 names. Any of those persons has the capacity to leak the names, which they might be tempted to do for a variety of reasons. They may, for instance, dislike one or more of the named players and want to settle a score. Or perhaps their intentions are more sinister: they could threaten to disclose a name or names unless compensated in a blackmail scheme.

Officials at the MLBPA and MLB are most likely aware of the names, as are various federal officials, including the agents who seized the computers, as well as judges, clerks, prosecutors and their assistants. Certain player agents and attorneys may also be aware of the list. In short, a lot of people have probably seen the list.

Granted, all of these persons "in the know" are bound by professional duties of confidentially, violations for which can trigger civil consequences. A baseball agent, for instance, could risk fine, suspension, or even decertification by the MLBPA, which certifies agents who have clients on 40-man rosters. The union itself is dissuaded from disclosing the names. Under federal labor laws, the MLBPA and its officials owe duties of trust and competence to each of its players. Should the MLBPA disclose the 104 players' names, the named players would be entitled to sue the MLBPA for breach of duties; they could also file a grievance with the National Labor Relations Board. Players' damages could be shown through reputational harm and potential loss of endorsement deals.

In addition to civil liability, certain federal officials could also be held criminally responsible for prosecutorial misconduct, which can theoretically entail leaking prejudicial information to media. Tracking down the source of the leak, however, would be extremely difficult. There may thus be inadequate deterrence to dissuade each person who is "in the know" from leaking the names. Indeed, it seems only a matter of time before we all know the remaining 102 names.

For Sosa and Rodriguez, however, the secret is already out of the bag and their baseball legacies may be irreparably tarnished. Yet unlike Rodriguez, who never lied under oath (lying to fans, media, teammates, agents, managers, and almost everyone is not a crime), Sosa may find himself subject to an additional and far worse penalty: a criminal prosecution for perjury.

On March 17, 2005, Sosa, along with Mark McGwire, Rafael Palmeiro and several other players, testified before the House Government Reform Committee. During the hearing, Sosa's attorney at the time, James Sharp, read a statement on Sosa's behalf. In the statement, Sosa expressly stated that he had never used steroids or human growth hormone.

Sosa thus faces the possibility of a Justice Department investigation, and subsequent grand jury proceeding, into whether he committed perjury. He would join Barry Bonds and Roger Clemens as players prosecuted not for using steroids, but for knowingly lying about it.

At first glance, it would seem difficult for Sosa to claim that he did not knowingly lie about using steroids. During his hearing, his statement expressed that he "would never put anything dangerous like [steroids and human growth hormone]" in his body. His statement also unambiguously declared, "To be clear, I have never taken illegal performance-enhancing drugs. I have never injected myself or had anyone inject me with anything."

Case closed? Not so fast.

Sosa could borrow out of Bonds' thus far successful playbook and argue that even if he used steroids, he did not knowingly do so. He could contend, for instance, that he thought he was taking a legal dietary supplement, which turned out to be a steroid. After all, many big league players in the 1990s and early part of this decade were using assorted substances -- some legal, some not legal -- to enhance their play. It seems plausible to imagine that there was some confusion among players, and possibly their agents, about those substances. Keep in mind that in a perjury trial the government would not prevail by proving that Sosa used steroids. It would need to show, beyond a reasonable doubt, that he knowingly lied about using steroids.

Sosa potentially benefits in three other ways.

First, Sosa is viewed favorably for his charisma and charm. He has also been praised for his community service and generosity, particularly for his charitable work after Hurricane George decimated parts of the Dominican Republic in 1998. Never underestimate the power of reputation to influence whether one is selected for prosecution.

Second, although a person can commit perjury through a written statement, the government may place significance in the fact that Sosa did not verbally make the potentially-incriminating comments. Sosa, in fact, claimed he did not feel comfortable speaking because of his command of the English language. If Sosa's English was not perfect, then did he fully understand the meaning of the written statement? If not, could he have "knowingly" lied?

Third, under Title 18 of the U.S. Code (Section 1001), there is a five-year statute of limitations for federal perjury charges. Assuming Sosa committed perjury on March 17, 2005, he would, barring the tolling of the statute, need to face charges by March 17, 2010 -- a mere nine months away. Whether the government would want to investigate and seek a grand jury indictment in such a limited period of time remains to be seen.

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