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Saturday, August 08, 2009
This post originally appeared on NBC's Circling the Bases on July 31, 2009. However, due to a recent platform changeover at NBC, it can be really hard to find in the archives (here is a link to where it currently resides, though that might change). I'm now reposting it in its entirety, because with the Ortiz business and everything else, it keeps coming up. -- Craig
There's a growing sentiment out there -- joined by everyone from crooked guys like Victor Conte to dumb guys like Ozzie Guillen to smart guys like Maury Brown -- that baseball or the union or the courts or whoever should just release all the names on the list of the 2003 positive tests. Setting aside the fact that such a thing is practically impossible -- actually releasing it all would require a court order itself, and no one else involved in the case has any incentive for it to be lifted -- it's also a horrible idea.
The list, as everyone seems to be forgetting, would not have existed if the people whose names appear on it (and about a thousand others) hadn't been promised that it would remain confidential while it existed and would be destroyed soon after it was created. Those promises were broken, first by the players' own union, who violated the players' trust, and then by the federal government, who, in the opinion of many, overstepped previously-established legal grounds to seize the information in the course of their BALCO investigation. An investigation, mind you, that had nothing to do with the vast majority of the players on the list.
The listed players have had at least two legal duties owed to them breached and two legal rights entitled to them violated: the fiduciary duties owed to them by their union, the contractual duties owed to them by baseball and the testing lab, their Fourth Amendment rights against unreasonable search and seizure, supposedly guaranteed by the U.S. Constitution, and the right to have their medical information kept private, guaranteed by HIPAA. It's too late for Manny, Papi, A-Rod, and Sosa, but around 100 other of these guys still have not been damaged by these egregious acts, though they will be if their names are released as everyone is so blithely demanding.
And what is to be gained by such a release? The satisfaction of the media, who would love to report and opine on this some more, and the satisfaction of the general public who either gets off on the salaciousness of it or, more commonly, simply wants this all to go away and thinks the quicker the names are out the more likely that is to happen. Call me crazy, but I don't think my rights to privacy and to the security of my personal medical information are something to be preserved or denied based on how good a story this makes for someone.
If you're one of those people, however, who simply insist that these guys are cheaters and cheaters are ruining baseball, think about it this way: what if you were involved in a nasty divorce case, and some of the confidential court records -- say, a hearing transcript where people were talking about your personal failings, like say, an extramarital affair -- were suddenly thrown out to the media? How would you feel if people clamored for "the rest of the records to be released?" What if the drug tests many of you out there have to take as a condition of your employment suddenly showed up on the evening news ("200 Microsoft employees test positive for drugs!")? Would you be part of the crowd demanding that the names be named?
Of course you wouldn't, and to the extent people are demanding it of the famous 104 now, they're only doing so to satisfy their curiosity and/or fill some column inches in their newspaper. Against a backdrop of serial violations of the victims' rights -- and they are victims -- such a demand is offensive in the extreme.
Don't release the rest of the names. And investigate and prosecute the person who has been doing the leaking.