Piss Off

Peter Abraham hits this one right on the nose. Our government, in a prosecution that was politically contrived by John Ashcroft from the outset, is hoping to violate the legitimate privacy of a vast number of Major Leaguers in a move that is both grossly unjust and could set a catastrophic precedent applicable to every citizen, not just those who can hit or throw a ball. We’ve been fairly outspoken in our disdain for the use of PEDs on this site, and our distaste for Barry Bonds in particular is a matter of record. But the ends, in any case and in this one in particular, do not justify the means.

41 comments… add one
  • actually yf, peter abraham, and you apparently, are dead wrong about this one, if, and that’s a big if, a crime has been committed…i am certainly a champion of civil rights and the right to privacy, but there is a major difference between the protection of one’s rights to privacy regarding medical records relative to physical conditions and disease, versus the right to protection from ridicule or prosecution for having committed a crime…this looks like a typical aclu crusade, which if there’s any justice at all, will fail, and the the truth-seekers will be able to continue their task of outing the wrong-doers, and their accomplices…

    dc December 31, 2006, 12:01 am
  • YF:
    Pete compares this to a client/doctor privilege situation, which is a false analogy. This is not that.
    The appeals judges that overturned the decision were appointed by Clinton and Reagan, with the dissenting judge also a Clinton appointee. Oftentimes it is easy to think of politics first, and legalistics second. But in many cases, particularly with appeals courts, the decisions are rendered on very finite and precise legal matters, and are not necessarily about the large-scale issues of every day life. This was a 120 page decision based on what I imagine was serious review of the methodologies of the case; I suppose there are complexities within the decision that are more significant than not. This case is probably not over yet, either.
    Not that I defer to those in the know aboute everything, and we are most definitely entitled to our opinions (and Pete’s is consistently one of the best), but there are a few things I tend not to bother with. Included in those are Mike and the Mad Dog discussing golf, another is beat writers or sports columnists trying to distill complex appellate court legal decisions.

    SF December 31, 2006, 7:56 am
  • From Nick Cafardo’s Sunday Globe column:
    “Marc Mukasey is a former assistant US Attorney who has done extensive steroids prosecution work and once led a unit of Drug Enforcement Administration and federal prosecutors in steroid trafficking cases. Mukasey is currently a partner in the New York City office of Rudy Giuliani’s law firm, Bracewell & Giuliani .
    Mukasey doesn’t think the Players Association will get far in trying to overturn an appeals court ruling in San Francisco that gives federal investigators the authority to use the names of 100 major leaguers who tested positive in their steroid probes.
    Mukasey said the Fourth Amendment, which guards against unreasonable search and seizure, is clear. Investigators seized what they were authorized to take — urine samples and data from three labs that conducted and interpreted the drug tests — and did it in “reasonable fashion.”
    The ruling also indicated that everything was done properly by the investigators, which would be another reason the Supreme Court would likely reject the case. The Players Association could ask another appellate court to hear the case, but even that appears a long shot. Yet it will surely try to protect the privacy of a hundred players who thought they were taking part in a confidential and anonymous test in 2003.
    As it turned out, the findings were used by Major League Baseball to institute a steroid policy that it bolstered a year later.
    Mukasey said, in his opinion, prosecutors are not going after the users (the players) but “on the federal level, they’re more than likely going after the traffickers.”
    In Barry Bonds’s case, said Mukasey, it will be difficult to prosecute him even if his name is on the list because “he has already testified before a grand jury that he didn’t know he was using an illegal steroid or performance-enhancing drug.”

    SF December 31, 2006, 8:04 am
  • thanks for the additional info sf…both posts…i think bonds could be in other trouble though if it’s determined he committed perjury…i agree with mukasey that acquiring the list of names should not be perceived as a “witch hunt” of the players, but rather as part of the “trail” that would lead to the real bad guys [the suppliers]…as for the whole confidentiality issue, i’m no lawyer either, but as long as the information obtained is relevant to the investigation of whether crimes have been committed, was obtained legally, and nothing is leaked to the general public [good luck on that one], then it seems ok to me…

    dc December 31, 2006, 8:37 am
  • What’s the crime here?

    john December 31, 2006, 9:26 am
  • i guess we don’t know yet john…could be perjury if someone lied to a grand jury…could be something else, depending on whether the substances were/are considered illegal to sell/possess, or it simply could be “crimes” against the national pastime..

    dc December 31, 2006, 10:08 am
  • Seems like if you’re going to be mad at anyone, it should be MLB for telling players they would be participating in a confidential test, then keeping names with the tests for investigators to subpoena.
    Abraham makes a big mistake with the comparison to a blood test at your doctor’s office — doctor-patient privilege is absolutely not the same as a drug screening conducted because employees are suspected of taking illegal substances. People doing illegal activities who are then tested or questioned about those illegal activities have very little expectation of privacy should prosecutors start questioning the people who took those tests or asked those questions.

    Paul SF December 31, 2006, 10:12 am
  • The thing is, the MLBPA had the opportunity to destroy the records, and chose not to. Not that this has any relevance to the case, but why the f**k would the PA not take the opportunity to do this? What was the upside?

    SF December 31, 2006, 10:19 am
  • The Players had every expectation that their participation in the testing was anonymous and confidential and would not be made public or turned over to the government. They participated as part of a sanctioned and collectively bargained agreement. They had every expectation of a privacy right—or this never would have gone forward in the first place.

    YF December 31, 2006, 10:44 am
  • It’s a criminal investigation, YF. Just because they expected privacy doesn’t mean it is guaranteed. And I think you are using this appellate court ruling as a soapbox, without understanding what an appellate court does.

    SF December 31, 2006, 10:47 am
  • Just because they had “every expectation” doesn’t mean they had legal expectation or even reasonable expectation. What, the MLBPA misled someone? We’re surprised by this?

    Paul SF December 31, 2006, 10:59 am
  • Could you be slightly less condescending there SF? I think I have a very good idea what an appellate court does, and a degree from Yale Law is not required here. This case did not happen in a vacuum. It has reached Appellate because it was brought forward in the first place, in a POLITICALLY MOTIVATED attempt by the Bush Administration to find some issue to distract the public from the fiasco that was and is this presidency. Voila: cheating ballplayers! We can all agree about that, right? Great. Easy target. So the case is mismanaged from the top consistently throughout, with a series of illegal leaks to the press—and (don’t forget Paul) these same prosecutors out to put journalists behind bars, as well.
    As for what an appellate court does, SF: They hear appeals. And this case was origingally ruled in the other direction. It was overturned in a split decision. This is, clearly, a complex legal matter, but what is clearly hapening is a zealous prosecution woring hard to find every legal avenue to persue a trecherous, dubious course that invades the privacy of hundred of American citizens. You don’t need a law degree to see that, and clearly.

    YF December 31, 2006, 11:25 am
  • ps, dc: “a typical aclu crusade”. with that i would agree. in this case, it’s an endorsement.

    YF December 31, 2006, 11:29 am
  • It’s not so cut and dry, so conspiracy-laden, YF. There are plenty of intelligent legal scholars who see no issue with what has happened here; it’s not a baseball issue – it’s a legal issue. Lower courts are often overruled by appellate courts – it’s because the lower courts are often populated with lesser legal minds, to be honest. My condenscension was intended: the reflexive legal analysis of this case by Peter Abraham (and you, through acknowledgment) is onion-skin thin; it’s a complex matter and should be acknowledged as such. Preaching about the tentacles of government, particularly through this strange matter, hardly seems like the most convincing case for your outrage. And I have thought a great deal about it, as well, just so you know.
    As you well know, I am probably to your political left (I am to the left of almost everyone I know, in fact), so this is not about my own idea of what is right or wrong, about the politics of it as I believe them. I have utter distaste for many of the privacy-invasive policies that have come to light in the past several years; I find many of them counter-American. I think Ashcroft et al have a special spot reserved for them somewhere warm. And I am with you on the ACLU thing – bravo to them for making every attempt to protect our rights. But I fully believe in due process as well, something that your comments almost read as wanting circumvented. If the legal issues become untenable, they will likely be ruled as such. If the higher court overrules this appellate court, then so be it. This case is not over, but it does appear to have legal merit. That’s an important part of our system, acknowledging both the merit and precedent of the legal case, whether we like what it means, what is happening, or not.

    SF December 31, 2006, 12:10 pm
  • “Preaching about the tentacles of government, particularly through this strange matter, hardly seems like the most convincing case for your outrage”
    The point is, you don’t get to pick your platforms; they are thrust upon you, as here. This prosecution and administration is adept at manipulating the law and the direction of argument so that it can claim moral high and then legal victory when it is most assuredly not deserved, and fundamentally flouts the most basic tenets of our democracy. The law is malleable. What has not our law countenanced in the past? Let’s not forget this administration’s attempt to circumvent habeas corpus. This is another instance of the same. It is not merely a legal issue, as you suggest. It is a legal process taking place in a political context.

    YF December 31, 2006, 1:11 pm
  • As I observe the highest judges in our land making legalistic, highly technical and procedural arguments in support of resegregating our public schools, it is hard for me to completely agree with what SF is writing here. I get it that there is a legalistic argument that supports the government’s efforts to, in its pursuit of justice, not abide the terms of a private business’s collective bargaining agreement. But I find it hard to agree that these arguments are not politically motivated. There are legal arguments on both sides. It’s up to judges to intepret the law, and usually, no matter how brilliant and fair the justice, the judge brings his/her personal biases to the case (witness the 2000 election).
    But as a private citizen, I think YF is correct in stating his opinion (and the stronger put, the better in my view) about an issue being ruled on in our public courts. I don’t think we should be required to have law degrees and legal expertise to question what, at least superficially, seems to be a dangerous precedent set for all citizens. Why should legal scholars and “experts” be the only ones allowed to use the soapbox we all are guaranteed as citizens of this country?

    Nick-YF December 31, 2006, 1:14 pm
  • But the independence of the courts protects us, supposedly, from the politics of the issue. And we have to have some faith in that, as far as I am concerned. Even if the courts rule in ways we dislike.
    The politics, whether you like it or not, may still be based on legal grounds, and we are supposedly a country of laws. Personally, I detest the politics just like you and YF do, Nick, but I am not able to overlook the fact that independent judges have a job to do that is, in theory, separate from the machine of any party.
    And to repeat, one of my main problems with this outrage is that Pete Abraham (and by extension, YF) compare this to doctor/patient privilege. It is not that. That comparison renders their logic flawed and their position weakened, even if their sentiments are laudable.

    SF December 31, 2006, 1:23 pm
  • You’re off base SF. The comparison is NOT to doctor to doctor/patient privilege; it’s about intrusion into corporate medical records obtained with a guarantee of privacy. This is a very slippery slope, not nearly so cut-and-dried as “I went to the doctor and we discussed my penile implants.” Because we have no universal health care system, business has access to a great amount of personal data, and that data, in this case, is being used in a way that will violate the privacy of an overwhelming majority of innocent citizens.
    The independence of the courts is a red herring issue, and in any case, while the court may be independent, it is absolutely and by no means at all perfect or deserving of a free pass from criticism.

    YF December 31, 2006, 1:35 pm
  • “guarantee of privacy”
    Where is the legal guarantee of privacy from criminal investigation in this case? Paul mentions this in one of his earlier comments, and there’s still not proof that any legal guarantee exists, whatever one’s politics might tell them.
    I don’t believe doctors have to reveal something about a patient if asked by prosecutors. You imply that this is the same thing. It’s not.

    SF December 31, 2006, 2:02 pm
  • “If you give blood to your doctor to test for a disease, would that remain confidential or could somebody test it for drugs?”
    but you say:
    “The comparison is NOT to doctor to doctor/patient privilege”
    Did you actually read Abraham’s post all the way through or not?

    SF December 31, 2006, 2:05 pm
  • I read the post; it looks like you’re having some issues on the reading comprehension front. The essential argument is about access to medical records obtained in a corporate setting, at “XYZ Company.” See the first line. But let’s not get derailed by a semantic analysis of Abraham. The issue, whatever his argument, is broader than simple doctor/patient privilege.
    Does the government have the right to subpoena the medical records of an entire firm of innocent individuals? There are so many disturbing things about this prosecution, and there have been from the beginning—political pandering, illegal leaks, attacks on the press, attacks on basic civil liberties—and with so many awful precedents at stake, that to sit back and say, gee, complex issue, onion skin, just ballplayers….well, I can’t go there with you.

    YF December 31, 2006, 2:25 pm
  • The condescension shoe is on the other foot, now.
    I am something of an idealist, even while being a pinko liberal from Massachusetts who thinks Republicans are greedy, arrogant, anti-progress, and mostly criminals(!). But I believe in due process, and I think the system works, for the most part. There are certainly grave injustices rendered by our legal system. Without acknowledging that, I would not be an idealist but both a utopian and something of a coward. I don’t doubt that there have been problems with this investigation, and I certainly sympathize with your point of view on the philosophy of it all – in fact, I agree about the slippery slope of the invasion of privacy precedent. But the case is not well-made by either you or by Peter Abraham, since the legal entitlements of the government and it’s prosecutors in a criminal investigation are far more complex than either your or he are willing to admit.

    SF December 31, 2006, 2:40 pm
  • Well I thought I needed to take back some of the condescension field. So there.
    This is a sports blog, not Harvard Law Review; obviously the arguments here are going to be simplified.
    Let’s agree to disagree on this one.

    YF December 31, 2006, 2:45 pm
  • Here’s what I see:
    1) The “plain view” aspect of the Government’s argument in the seizure of of unrelated computer data is very troubling to me. The Fourth Amendment aspects of this case are absolutely fascinating.
    2) Major League Baseball and the Players’ Association (and possibly the companies Comprehensive Drug Testing and Quest Diagnostics) are in serious trouble with all ballplayers for guaranteeing anonymity in the tests to the players and not delivering it. Several someones did not do their due diligence. It is not hard to imagine the launch of a fleet of civil suits should the names become public.
    3) There is zero chance criminal charges will be levied against any ball players because of a positive test. Some chemists may eventually swing. I don’t have sympathy for the players who tested positive and it’s arguable how much damage will actually be done to them, but the way the government went about getting the data and the subsequent seizure of unrelated information reeks.
    4) Considering the number of positive tests in the last year versus the number of professional ball players at the major and minor league level, this pursuit is in some ways a colossal waste of resources fueled by the desires of the principles in the government’s side of the case to stay in the spot light; I smell Ken Starr farts, however…
    5) I see a positive side to this. An organization with the financial resources and public profile such as the MLBPA is far better equipped to defend an attempted trampling of the Bill of Rights by an over-zealous Government investigation than the average citizen. This case may end up doing the common person a favor. There’s not a lot of history or precedence for matters such as this in the information age, and there are a multitude of questions and scenarios that need to be addressed. Complex is an understatement. I’m glad that there’s a lot of clout on the side of privacy in this particular case.

    attackgerbil December 31, 2006, 3:21 pm
  • The thing is, the MLBPA had the opportunity to destroy the records, and chose not to.
    SF: the records were to be destroyed in 2003, but the companies in charge of the testing (mentioned in my last post) were subpoenaed by the U.S. Attorney’s office to keep them intact. The mistake was having the names tied to the samples to begin with.

    attackgerbil December 31, 2006, 3:35 pm
  • It’s a criminal investigation, YF
    What’s the crime they’re investigating, SF? If the players didn’t commit one, why are their rights being trampled on?

    john December 31, 2006, 4:36 pm
  • Were the steroids illegally bought? Was it illegal to take them?
    I thought the answer to both those questions was “no.”

    john December 31, 2006, 4:40 pm
  • I need to read the court’s opinion before I really delve into the minutiae of the arguments. Like most everyone here, I have significant concerns about this administration’s tendency to devalue the privacy rights of its citizens, particularly because the founders of the country put such an enormous premium on those very rights.
    However, it is a slippery slope in the opposite direction to argue that illegal activity — many steroids are regulated as controlled substances, John — deserves overarching privacy protection. There are plenty of abstract arguments to be had about whether drug use, particularly the use of drugs that do not make their users aggressive and/or potentially dangerous, should even be an illegal activity, but it is. And if someone who is using illegal drugs consents to a drug test and tests positive, even if told by his employer he will be given anonymity, it’s hard for me to see where the violation of his constitutional rights comes in when prosecutors might eventually want to know whether he’s been engaging in illegal activities.
    What I object to the most, as SF has said, is the oversimolification by Abraham particularly that drug tests are medical tests and therefore akin to a test done at a doctor’s office. That’s simply not true. The case is indeed far more complicated than that, and without delving into the specifics of the case, it’s hard to feel much sympathy — constitutionally or otherwise — for the players.

    Paul SF December 31, 2006, 4:50 pm
  • John: see Nick Cafardo’s column at the Globe today, as I cited above.
    “Mukasey said, in his opinion, prosecutors are not going after the users (the players) but “on the federal level, they’re more than likely going after the traffickers.”

    SF December 31, 2006, 5:34 pm
  • “Subpoenas were issued to both companies in late 2003, a day before the test results were to be destroyed, and in April 2004, Internal Revenue Service agents seized the test results and samples.”
    You are correct, Gerb. I read yesterday that the PA had not ordered them destroyed. That was clearly incorrect information.

    SF December 31, 2006, 5:38 pm
  • SF, if they’re going after the dealers, this does seem very hard on the players. Look at what happened to Palmeiro.
    And Paul-SF, I’ve always read that the ballplayers are assumed to take legal steroids. Are the dealers breaking the law because these are prescription?

    john December 31, 2006, 6:05 pm
  • John: huh?
    The players mostly got steroids illegally, as far as I can tell. In the SI piece, it was clear that Balco provided steroids to players who didn’t have legitimate medical prescriptions. Most of these drugs are illegal without such a prescription. Most players who took steroids were likely doing so in violation of the law, if not the rules of baseball (there’s the weird part!). There seems to have been plenty of illegal activity to go around several times.

    SF December 31, 2006, 6:09 pm
  • This is COMPLETELY off-topic, but I find it gratifying when Dan Shaughnessy is 100%, incontrovertibly wrong.

    SF December 31, 2006, 6:17 pm
  • Okay, so it’s not that they’re illegal per se, and they weren’t banned by baseball, but they’re illegal if you don’t have a prescription.
    If you google things like “illegal steroids baseball,” you find very few say why they’re illegal. And several players like Caminiti and Cansecon saying “half” of baseball takes them.
    I found this, but the source is a little dubious:
    * Over 100 types of synthetic anabolic steroids exist. All are illegal, unless prescribed by a doctor to treat a medical problem. If a person were caught with the drugs and without a prescription, first-time offenders could be sentenced to up to one year in prison and be fined a minimum of $1,000.

    john December 31, 2006, 6:38 pm
  • If any YFSF New Yorkers are looking for a spot to ring in ’07, I’m playing drums at Small’s, a jazz club on W 10th and 7th Ave. First beer on me, if you mention the site. Happy New Year To All!

    Andrews December 31, 2006, 6:57 pm
  • Andrews:
    That’s an amazing gig! I wish I could make it, but for a 2 year old jazz clubs would still be in the cards – have a great New Year!

    SF December 31, 2006, 7:05 pm
  • John said: If the players didn’t commit one, why are their rights being trampled on?
    It’s not the players that took steroids and were named in the warrant who are having their rights trampled on. Personal medical data from thousands of athletes unrelated to the Balco case was seized by the government. Whether or not this was a just seizure is what is at hand.
    Based on what I have read so far, I would not argue that the eleven Balco clients named in the original warrant should have any legal protection regarding the results of the “anonymous” tests coming into the hands of prosecutors. The guarantee of anonymity was improperly executed in the testing procedure, but the government has no obligation whatsoever to honor the guarantee regarding the clients named in the warrant. However, the seizure of all the collateral information of the tests covering the other players is somewhat concerning, and the seizure of completely non-related files is what strikes me as particularly egregious.
    It’s not a question if steroids are illegal or not (they certainly are without prescription), whether they are “bad” or not (they have valuable uses under proper medical guidance), victimless or not (here’s where someone can slip in their “won’t someone think of the children” straw man). The question is far beyond baseball. The central issue is what level of intrusion the courts are going to allow. This dragnet-style of information gathering by law enforcement under the guise of “plain view” has me concerned and highly curious about the results of the next appeal.

    attackgerbil December 31, 2006, 7:29 pm
  • Wow, YF. This quote amazes me:
    This case did not happen in a vacuum. It has reached Appellate because it was brought forward in the first place, in a POLITICALLY MOTIVATED attempt by the Bush Administration to find some issue to distract the public from the fiasco that was and is this presidency. Voila: cheating ballplayers! We can all agree about that, right? Great. Easy target.
    Should I line my Red Sox hat with tin-foil when reading this blog in 2007?

    Brad December 31, 2006, 10:26 pm
  • I don’t know if YF is over-reaching regarding ties to the Bush administration. I do think that it is hard to see this quest as something that is motivated in no small part by political gain, based on the level of the infraction(s), the fiscal investment, and the eventual quarry compared to the relative harm done to society by the transgressors. This is most certainly a fish-in-barrel topic, and I think YF is right to question the motivation of the dogged pursuit of the case. There’s no model of this that I can see that is not purely political, considering the dollars and stakes involved. Whose agenda is being forwarded? I don’t know, but it seems to me this is a case of an investigator given a long leash because it is a magnetic topic that distracts from much greater grievances far more deserving of the attention of the body politic. I’m also optimistic that the government is letting out just enough line by which to hang themselves.
    Yes, of course, someone at some point illegally sold steroids to major-league ball players, and those said-same players illegally purchased those products. Are the steps the government has undergone, is undergoing, and will undergo appropriate in relation to the initial offense? Seems a bit out of proportion to me.

    attackgerbil December 31, 2006, 11:28 pm
  • This case has dragged on for so long, that the political motivations that drove it at its outset are now vanished from memory. That doesn’t make them less real. There was probably no one more articulate on this matter than the late Doug Pappas, a practicing attorney and chair of SABR’s business of baseball committee before his tragic death in a hiking accident in 2005. This post, from May 2004, is him at his best. Though events to a degree obviate it, the sentiment and the key arguments remain valid. And that last last sentence is priceless:

    YF January 1, 2007, 1:00 am
  • if it puts yf’s mind at ease, i can assure him that this is not some far-reaching bush administration conspiracy to subvert our civil rights…simply put, the committee was charged with investigation crimes relative to illegal substance abuse in baseball, nothing sinister…we have to expect that in order to perform a thorough investigation, it’s necessary for the investigators to acquire pertinent data, some of which may be very sensitive and classified…on my earlier comment about the aclu, if i wasn’t clear then, i am not a fan…they have taken a noble concept and gone too far with it…i don’t want my rights trampled on either, but i don’t get irritated by having to show up at the airport earlier and having my stuff searched…if the players were promised anonymity and they believed it, how naive…as long as information is obtained “legally”, it’s fair game…

    dc January 1, 2007, 10:42 am

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