Anonymous vs. Confidential

While the whole Orza/MLBA/sample destruction drama seems to have receded into the background since Monday, there is one big question about all of this that bothers me, and that’s why it was ever possible — destruction or not — for names to be linked up with the 2003 samples. I had only been thinking vaguely about this, but reader/fellow shyster Ken Schultz articulated the problem quite nicely in a recent email:

Everyone is focusing on Fehr’s failure to shred the document the day he got it. If it was just a list of random numbers and a column with a “1” (for yes) and “0” (for no), there would have barely been a reason to shred the document.

People conflate “confidential” and “anonymous.” They don’t mean the same thing. Not even close. Confidentiality is always, whether explicitly or not, subject to judicial order requiring disclosure. Anonymity is not. The DOJ could have subpoenaed names/results of anybody, BALCO or otherwise, but if the league/union never had that information in the first place, there would not be any issue.

Fehr/Orza holding the doc for 5 days MAY have been wrong. Allowing names to attach to particular samples was CERTAINLY wrong, violating the spirit and (I assume) the letter of the agreement between the union and MLB.

Is anyone privy to the 2003 testing agreement? Does anyone know why there ever was a way to link names and samples? I’m no testing expert, but given the limited purpose of those tests, it strikes me that a purely anonymous system, as opposed to a merely confidential one, would have been preferable.

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  1. Pete Toms said...

    I struggle with this too, although I haven’t been reading anthing on the web this week other than Shysterball.

    We do know the pee went one place and the identities of the pee (the names attached to the barcodes) went to CDT. (right acronym?)  Why were identities necessary to determine the percentage of positive tests?  I don’t know.  And weren’t some players tested more than once?  And I’m referencing the “survey” testing specifically.  And did Orza need the identities to prove “false postives?”.  What is necessary to establish a “false positive?”  Do you need info from the player about what they have been taking?  I don’t know…

  2. MooseinOhio said...

    Anonymous could have been easily carried out as you have the player make his deposit in the appropriate container that is identified simply by a numeric code.  Collect the required number of samples from the predetermined sample group you identified, run the test, run a secondary test if necessary to confirm result of first, store samples for additional test if needed and run the numbers to see what percentage tested positive. 

    If percentage is greater than predetermine threshold value (i.e. 5%) then drug testing is a reality for 2004 and MLB claims victory, as it did.  If lower, then the MLBPA would have been able to say “told you so” and moved the issue down on the CBA list for the next round of negotiations. There was absolutely no need to associate names with the samples unless you wanted to know who tested positive and negative as names were not necessary to establish the percentage of postives test results. 

    So it appears that some folks wanted to, felt the need to, know the names of those withthe positive test results.  As for why this information was sought is up for speculation but in my opinion it was clearly sought for a purpose.  However it clearly indicates to me that some folks at the MLBPA made a big mistake in not properly protecting the privacy rights of the players tested by requiring anonymous test. 

    Ironic isn’t it.  The MLBPA has preached to high heaven the need to protect players rights and privacy and they appear to have made the mistake that has exposed their own players.  Fehr or Orza need to go, if only as a part of a mea culpa to the players they have now misrepresented, however I think the same hubris that may have led to this exposure of players will keep both on place.

  3. philosofool said...

    I’m quite certain that every player in MLB believed that his test results would never be disclosed. These guys are baseball players, not lawyers, and I’m quite sure few of them will distinguish anonymity from confidentiality. Many of them don’t speak English as a first language. Of course, the MLBPA should have ensured confidentiality by creating anonymity. Despite popular opinion that contracts are full of linguistic loopholes, the law sensibly understands that the spirit of a contract is important. The spirit of the agreement was that player’s identities would never be publicly associated with test results.

  4. Ron said...

    I have to go back to my days of giving urinanalysis during my army days. They were confidential/anonymous also.

    When someone filled the bottle, it has a lable with a bar code put on it. At the same time, the individual had to sign his name to a list that correspsoneded to that bar code, aldong with his SSN.

    The bottles were then sent to the testing lab without the list and without anything to identify it to a specific individual. The samples were randomly tested by someone who had no access to the names. Meanwhile, the names were held separately by someone who had no access to the samples.

    If a sample came up hot, the bar code information was then sent back to the unit, where it was matched to the list to see who’s name it was. I would imagine the same system is used for MLB.

    But you have to keep the names. If not, all you have are a bunch of bottles and it doesn’t really matter who filled them. If you don’t have a list of the names that match the hot bottles, then what was the point of even testing. To get a percentage of players using? That wasn’t the case.

    If you don’t keep a list of names, then everyone tested has to be assumed guilty because you don’t have anything to match it to.

    And you can’t assume everyone is innocent, becuse there were 104 hot tests. It can’t be annonymous.

    You have to have a list. And it has to match to the samples. There is no other option. The military has been through the legalities of this for years, and I can’t imagine that MLB, with its big law firms, doesn’t know the same thing.

    No names = no hot tests

    No hot tests = no testing

    No testing = no attempt by the union or baseball to actually do something about the issue

    But in the Army the list of names was kept in a safe that only 2 or 3 people would have had the combination to. And if anyone had released the list, they were looking at jail time.

    The issue isn’t that there was a list of names. You have to have that.

    The issue is: who had the list and who let it be leaked?

    The only people who “should” have had the list are Bud, Don, and the person in charge of the testing. Simple, really.

  5. Craig Calcaterra said...

    “But you have to keep the names. If not, all you have are a bunch of bottles and it doesn’t really matter who filled them. If you don’t have a list of the names that match the hot bottles, then what was the point of even testing. To get a percentage of players using? That wasn’t the case.”

    Actually, that was precisely the purpose of the 2003 testing.  They were merely trying to see if 5%+ tested positive. If they did, then they would have implemented mandatory testing.  If they didn’t, they wouldn’t.

  6. Ron said...

    Okay, I missed that. I’ll be honest, I haven’t followed this that closely becasue it bores the crap out of me.

    On that issue though, my only counter to that (not that I necessarily need to) is that someone should contact the company that did the testing.

    They might have a policy that a list of names have to be keep, maybe because the company wants it, maybe because of legal reasons.

    What if any player who was tested, say Alber Pujols, was accused of being hot. How does he prove he wasn’t if there is no list of names?

    If there is no way to match his name to a clean bottle, then he’ll be assumed to be guilty by association.

    I don’t know enough about the legal stuff to say anymore than that, but there has to be a legitimate, reasonable reason why the list was kept.

    Personally, I don’t think the fact that a list of name exists is that big of a deal. The fact that it should have been safeguarded (by a few select people) and was allowed to be compromised is the problem. Who released the list is more important to me than who’s on it.

    Someone in a position of power is dirty.

  7. MooseinOhio said...

    So why did the MLBPA allow names to be associated?  That is my question as there are lots of example of using completely anonymous testing (e.g. HIV test, academic studies). So why did the union folks not advocate for the test to be conducted in a completely anonymous manner?

    Again – I find it ironic that their actions have resulted in a violation of players rights, in this case privacy rights, when they have been such staunch advocates for protecting said rights.  That is why I feel that either Fehr or Orza need to step down because one of the things they have held sacred was violated on their watch.

  8. Rob said...

    If you read the CBA, there’s no mention of confidentiality or even anonymity to the survey testing.  My guess is that the MLBPA wanted to know who tested positive so that they could inform them (as they apparently did with ARod) of the result, and potentially identify false positives.

    And remember, the anonymity that was really being sought was from MLB and the owners, not the Players’ Association.  They probably never expected the Feds to come in and link the names to the samples.

  9. LT said...

    “B. Treatment Program
    After concluding the Initial Evaluation and consulting with the other
    HPAC members, the Medical Representatives shall prescribe a Treatment
    Program for the Player. In devising the Treatment Program, the
    Medical Representatives may consult with other treating physicians or
    experts in the field and, unless HPAC decides otherwise, may not
    divulge the Player’s name.”


    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.”

    looks like there was a confidentiality provision, but only with respect to release of names.  furthermore, this wouldn’t withstand a subpoena, especially one from the federales.

  10. LT said...

    interesting note:

    “E. Marijuana
    A Player on the Administrative Track for the use or possession of
    marijuana shall not be subject to suspension. The Player will be subject
    to fines, which shall be progressive and which shall not exceed
    $15,000. Notwithstanding the foregoing, a Player who participates in
    the sale or distribution (as those terms are used in the criminal code) of
    marijuana will be subject to the discipline set forth in Sections 9.C
    or 9.D above.”

    -guess we know why 25 million was not enough for manuel aristides ramirez

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