MLBPA’s Statement (with UPDATE)

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.

Via Maury, the MLBPA has issued a statement regarding the destruction, or lack thereof, of the 2003 tests:

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.

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  1. Total said...

    Oh Good Lord.  Really?  If a client of yours had certain specific records subpoenaed, you would tell them that it would be fine to destroy all but those records immediately?  Really?  I’ll be sure to avoid getting into legal trouble in your area.

  2. MooseinOhio said...

    Are all the lawyer blogs now filled with talk of baseball as baseball blogs are currently filled with the talk of lawyers?

    While all this is important stuff that does affect the game I love to follow, I am so happy that pitchers and catcher will begin reporting soon.  Talking about who is filling the fifth spot in the rotation and being excited to watch the rookie who outplayed the vet in ST will be a much needed relief.

  3. crowhop said...

    What if they had gone ahead and destroyed the evidence anyway?  How would one big, giant “OOPS” have played out?

  4. Henry Quinn said...

    Disclaimer: don’t do drugs, A-Rod’s a tool.  That said,

    Isn’t the REAL real question why the MLBPA agreed to *any* testing mechanism for the first ‘trigger’ round that required destruction in the first place?  If the only purpose of the testing at that point was to determine if the 5 % threshold was met, why was there any linkage to PII at all?

    As my friend Bill said, in 03, if someone asked you to pee in a cup with your name on it, players should have said ‘No.’ 

    The union’s culpability begins and ends with agreeing to a system where this could ever happen.  The trigger round should have been completely anonymous, or it was more than a trigger round.

  5. Rich said...

    “Those duties at least equal any duty to vastly overpreserve records in response to a subpoena of dubious enforceability to begin with.”

    Do you have any legal support for that position? 

    Because certain documents don’t come within the four corners of a subpoena does not mean that you have carte blanche to destroy them. If anything, the MLBPA likely had a duty to preserve the evidence.  At the very least, I think most lawyers would agree that advising your client to err on the side of preservation, not destruction, when dealing with a GJ subpoena is the right way to go.

    But bloggers don’t have to answer to judges, so that makes it easier to recommend hard line positions.

  6. Scott B said...

    the players should have to ‘pee in the cup’, records of steroid use shouldn’t be destroyed and in line with most other world sports, olympics etc, players testing positive to PED’s should be banned.

    For all the finger pointing at eastern bloc doping through the 70’s and 80’s, “Western” athletes (have) used and abused PED’s almost unimpeded. World sports have started to crack down (ie Cycling, swimming, track/field) and it’s time sports like baseball fell into line.  Get these drug cheat clowns out of sport ASAP. a couple of 5 year bans ought to make a few people stop and think..

  7. Henry Quinn said...

    But Scott, the negotiated plan (regardless of how you feel about it) was for a round of testing to determine if a threshold was met—which doesn’t require any personally-identifiable information.  The fact that samples were ever link-able to people is hard for me to figure out.

    So yes, the sport would be better off if people addressed this issue years before they did.  But the fact is, there was an agreement and the mechanics of the implementation of the ‘anonymous’ trigger round were such that MLB was able to retro-actively ignore that agreement.  Why it did—and why the MLBPA allowed a destroy vs. don’t-collect policy—is pretty unclear, but it’s an ethical issue independent of the PED issue.

    Fehr should step up, and step down over this.  This is really, really poor.  You don’t have to destroy something you don’t collect.

  8. Craig Calcaterra said...

    I’ve been away for a couple of hours, but to address a couple of issues here:

    I don’t think they should have just destroyed the non-subpoenaed samples without thought, but the fact remains that they had duties to the players and the samples as well, so merely saying “let’s hold these indefinitely and see how it plays out” was irresponsible.  True, you dance with the devil whenever you destroy anything that you could one day imagine being subpoeaned, but when presented with these two incompatible options, rather than sinmply ignore one, why couldn’t they have asked the court for guidance?

    File a dec action which says (a) we have a duty to destroy these records that are not subject to the current subpoeana; (b) that said, we don’t want to get in trouble, so we’d like you, court, to determine whether or not we can destroy them.

    At that point the government would have to come in and make the argument 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).

    Instead, MLBPA just sat on their obligations to the players out of an abundance of caution to the subpoena. The government took the initiative and seized the non-BALCO records, and then the MLBPA had to play defense instead of offense, with the consequences being the leak we just had.

  9. Rob said...

    I seem to recall something along the lines that the govt seized all of the records:

    A) Because they needed all of them in order to identify the 11 BALCO individuals from the pool


    B) They claimed that the computer records were considered “in plain sight” once they started looking at the hard drives.

    Am I misremembering this?

  10. Craig Calcaterra said...

    I don’t play well with others?  Because I use all of my analytical skills on baseball instead of my clients’ boring legal problems?  Because my old law firm was pretty heavy into representing banks and that’s a bad racket to be in these days?  Maybe a little of all of that.

    But for what it’s worth, as of next week I won’t be unemployed anymore.  Got a job working for the Ohio AG’s office.  We’ll see how that goes.

  11. Chuck3 said...

    Thanks God spring training is upon us.
    Members of the MLBPA should summarily fire and counter-sue their leadership, past and present, for malfeasance, dereliction of duty, failure to perform, or whatever the appropriate categorization of offense might happen to be. I am sorry, but between the inactivity or directly obstructive activity of legal counsel everywhere and the ever-deeper intrusions of government into the affairs of people or businesses,  this whole baseball mess, plus the current morass of decrepitude which infects our entire legal system and our increasingly sorry excuse for a political system, disappoints the hell out of any optimist in me, and confirms my decision to resist becoming a lawyer. When the supposed “rights of the government”(read “possible evidence years down the road”) trump those of individuals or businesses, especially when there are supposed “legal conditions” (read ‘anonymity’ in that threshold PED testing process between players and their owners, union, and institution), the samples are not the most important thing to do away with… I agree with the previous points about truly anonymous meaning
    NO identification, and the players employing caveat emptor—don’t pee into ANY cup which has any identification(or will have)applied to it.

    Play the game, baseball. Let the lawyers fix the political system, or kill it.

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