Federal Government May Review MLB Player Drug Tests

In a lengthy 2-1 opinion in United States v. Comprehensive Drug Testing, Inc., the United States Court of Appeals for the Ninth Circuit held that the federal government could keep and review (under direction and supervision of a Magistrate Judge) records of drug- tests from more than one hundred Major League Baseball players. As part of its BALCO investigation, the government issued grand-jury subpoenas and obtained search warrants for computer files and paper information held by CDT and another company, Quest Diagnostics; both companies had performed drug tests on MLB players in 2003 pursuant to a contract with MLB. The government was looking for (and actually entitled to seize) only information on eleven specific players.

But in the course of the search, agents came across "intermingled" files and documents containing information on many other players who were not believed to have any connection to BALCO, in addition to the eleven targets. Under the majority's holding, the government may be able to retain and use initially non-seizable evidence that was initially mixed-in with seizable evidence. That determination will be left to the Magistrate.

For MLB's purposes, the impact of the ruling is not clear. News outlets are talking about the effect this could have on the investigation into perjury before the grand jury by Barry Bonds, apparently on the assumption that the records may show that Bonds did use steroids prior to giving his testimony. The absence of such evidence to this point may explain why the perjury investigation has not gone anywhere. Prosecutors generally (and properly) are reluctant to pursue perjury charges in a he said/he said situation; non-testimonial evidence that Bonds took performance-enhancing drugs might strengthen the case.

The records also could show just how pervasive steroid use is in baseball. The testing done in 2003 was anonymous and not under threat of penalty and MLB has downplayed what those tests showed.

Finally, since the BALCO grand jury has been famously leaky, there is a good chance that the names of some of these hundred players are going to get out to the public at some point.

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