Steroid test data freed

Ruling allows use of failed results, could strengthen Bonds perjury case

December 28, 2006|By Dan Connolly | Dan Connolly,Sun reporter

Federal officials probing steroids in sports can use previously confidential drug tests that about 100 major league baseball players failed as part of the investigation, a federal appeals court ruled yesterday.

The 9th U.S. Circuit Court of Appeals' decision - overturning three lower court rulings - could strengthen the perjury case against San Francisco Giants slugger Barry Bonds as well as cause embarrassment for some big leaguers who had seemingly escaped the scandal involving performance-enhancing drugs.

The positive urine samples also could help the federal government target steroid dealers, assuming players testify under oath about where they received the drugs.

But one legal analyst said it could make players' unions less willing to agree to voluntary testing - which ultimately could hamper a sports league's future attempt to crack down on illicit drug use.

In April 2004, as part of the ongoing federal Bay Area Laboratory Co-Operative investigation, which focused on Bonds as well as other prominent Northern California athletes, the Internal Revenue Service seized computer files containing baseball's confidential drug-testing results from 2003.

The files were taken after subpoenas were delivered to drug-testing firm Quest Diagnostics of Teterboro, N.J., and Comprehensive Drug Testing of Long Beach, Calif., which coordinated the collection of specimens and compiled the data.

In 2003, more than 1,400 urine samples were collected and analyzed as part of the "survey testing" agreed upon by the players association and Major League Baseball - and roughly 100 players failed. Because more than 5 percent of the tests were positive, a performance-enhancing-drug policy was enacted in 2004 - eventually paving the way for the current standards that include 50-game suspensions on first offense.

That ball started rolling, at least in part, because players knew they would not be penalized if they failed the 2003 tests and their names would not be released to the public. At the time, code numbers were assigned to individual players to ensure confidentiality.

Now, with the appeals court saying federal investigators can use the information that would match positive tests to players, it's possible the names will be leaked, similarly to the BALCO grand jury testimony. In addition, the new players involved could be faced with their own trips in front of a grand jury - something considered unfathomable in 2003.

"You're taking what was a private situation and turning it into part of a criminal proceeding, and when you do that, you step on the original agreement," said Mike Straubel, director of the Valparaiso (Ind.) University School of Law Sports Law Clinic. "The employee gave a sample as a condition of employment, and then the employer is being required to turn it over to the police. And that, all of a sudden, changes the rules."

The players union can seek a new hearing before the full 9th Circuit or appeal the ruling to the U.S. Supreme Court.

Both Major League Baseball and union officials declined to comment on yesterday's ruling.

"We have no comment until we have had a chance to review the decision," said union spokesman Greg Bouris, adding that a timetable for a response is "uncertain at this time."

In the past, the commissioner's office has not taken an active part in the fight to suppress the seized information, but has supported the union in its efforts.

Straubel, who teaches courses in sports law and international sports law and has represented athletes in doping cases, said the decision could make leagues skittish in the future when agreeing to voluntary testing. After all, he said, the politics involved with steroids and sports have elevated this case in the public eye.

"For a while, a lot of people turned their backs on it because sports were benefiting from it," Straubel said. "Now, the pendulum has swung the other way where we're going after anyone and everything."

Federal investigators originally acquired the subpoenas to see the 2003 test results for Bonds, current New York Yankees designated hitter Jason Giambi, current Detroit Tigers outfielder Gary Sheffield and seven others before discovering information on nearly 100 additional players.

Bonds, who is 21 home runs away from tying Henry Aaron's major league best mark of 755, may have the most to lose if the appeals ruling stands. Routinely denying he has ever failed a drug test, Bonds became the subject of a perjury investigation after testifying before a federal grand jury in 2004 that he never knowingly used illegal drugs.

If the information shows Bonds failed the 2003 test, it would severely hamper his defense in the perjury case. However, Bonds' lawyer indicated he doesn't believe his client failed the test.

"If Barry is one of the players that did not test positive in '03 for steroids, I would hope that it would cause the government to rethink their continuing harassment they've engaged in for years," attorney Michael Rains said.

Kevin V. Ryan, U.S. Attorney in San Francisco, said the office is reviewing the decision "to determine what the next investigative step may be."

dan.connolly@baltsun.com

Sun reporter Bill Ordine and the Associated Press contributed to this article.

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