I’m bumping this back up to the top because I have an update in response to several good comments and I want to explain my thinking further. Scroll down to the update to see it.
We are issuing this statement today to respond to two questions that have been raised in the last few days in connection with reports about Alex Rodriguez and the 2003 MLB testing program. First, it has been asked why the results from our 2003 survey tests were not destroyed before they were seized by the government in the spring of 2004. The short answer is that in November, 2003, before that could take place, a grand jury subpoena for program records was issued. . .
. . . The MLBPA first received results on Tuesday, November 11. Those results were finalized on Thursday, November 13, and the players were advised by a memo dated Friday, November 14. Promptly thereafter, the first steps were taken to begin the process of destruction of the testing materials and records, as contemplated by the Basic Agreement. On November 19, however, we learned that the government had issued a subpoena.
The real question — and I’m guessing someone has already answered this already, but I can’t seem to find it — is what that November 19, 2003 subpoena actually sought. My understanding is that it sought the results for the BALCO 10, and not every player in baseball. This squares with Jon Heyman and Mark Fainaru-Wada’s reports that, after the subpoena, the MLBPA litigated the crap out of things for months, and then and only then did the feds swear out a search warrant for the test results of all players.
If that was the case — and please, someone correct me if I’m wrong — Fehr is being disingenuous here, because it means that A-Rod and every other non-BALCO player’s results were not subject to a subpoena at that time and thus could have been legally destroyed. Yes, I presume someone could make the argument that destroying non-subpoenaed records when a subset of those records had been subpoenaed is a dangerous game, but as subsequent court rulings have shown — and common sense could have dictated at the time — the non-BALCO player’s records had no place whatsoever in the underlying litigation, and were not discoverable/seizeable/whatever. And I will not accept a response that goes “well, we kept them around out of an abundance of caution.” Maybe you do that with ordinary documents when a subset is subpoenaed, but MLBPA had affirmative legal duties with respect to the non-subpoenaed records. First, to keep them confidential, second to destroy them. Those duties at least equal any duty to vastly overpreserve records in response to a subpoena of dubious enforceability to begin with.
So again, if I am wrong about the timeline here, someone please correct me. If I’m not, Fehr has some more explaining to do than this.
UPDATE: Several commenters and emailers have taken me to task for counseling such a cavalier approach to document destruction. The gist of these comments: True, the non-BALCO samples were not technically in the subpoena, but surely you’re not so reckless as to have destroyed something related to the subpoenaed items, are you? No wonder you’re unemployed you unethical jackass!
OK, no one said that last part because you’re all polite, but that’s where it’s heading. Anyway, here’s my response:
I don’t think they should have just destroyed the non-subpoenaed samples without thought, because yes, that is risky. However, the fact remains that the MLBPA had duties to the all of the players — especially the non-BALCO players — to protect their confidentiality and to eventually destroy the samples. As such, merely saying “let’s hold these samples indefinitely and see how it plays out because we’d hate to run afoul of a future subpoena” was irresponsible. It elevated a potential future duty above an actual current duty, and that’s not acceptable.
But it’s true: you dance with the devil whenever you destroy anything that you can one day imagine being subpoenaed. But when presented with these two incompatible options, rather than simply ignore the duty to the players, why didn’t the MLBPA ask the court for guidance? Why didn’t they file a dec action — or at the very least request a conference with the judge — in which they (a) explained their duty to destroy the records that were not subject to the BALCO subpoeana; and (b) explained that in carrying out that duty, they don’t want to run afoul of any future claim by the government that the records were necessary to a prosecution. In other words, why didn’t they say “Help us Court!”
If they had done that, at that point the government would have to come in and make the argument for the relevance of and necessity for the non-BALCO samples. Which, as subsequent history shows, they wouldn’t have been able too (they’ve been ruled as improperly seized and not-relevant). If the court had ruled in favor of the MLBPA, they could have destroyed them. If the court had ruled in favor of the government, well, at least the players would have had a lot more advance warning of the possibility that their samples were compromised. If the court couldn’t decide at that early time whether the records were relevant it could have taken possession of the samples and held them in safe keeping until the matter became clearer.
But none of that was ever on the table. Rather, the MLBPA just sat on their current obligations to the players in deference to a hypothetical later subpoena. With the playing field wide open, the government took the initiative and seized the non-BALCO records. From that point forward, the MLBPA had to play defense instead of offense, with the consequences being the leak we just had. Personally speaking, I find that unacceptable.