Court: Feds may use drug testing data from 2003

SAN FRANCISCO -- With Barry Bonds still in their sights,
federal investigators probing steroids in sports can now use the
names and urine samples of about 100 Major League Baseball players
who tested positive for performance enhancing drugs, following a
ruling Wednesday from a federal appeals court.

The 2-1 decision by the 9th U.S. Circuit Court of Appeals
overturned three lower court decisions and could help authorities
pinpoint the source of steroids in baseball. It could also bolster
the perjury case against the star outfielder, who is under
investigation for telling a grand jury he never knowingly used
performance-enhancing drugs.

Investigators seized computer files containing the test results
in 2004 during raids of labs involved in MLB's testing program. The
samples were collected at baseball's direction the previous year as
part of a survey to gauge the prevalence of steroid use. Players
and owners agreed in their labor contract that the results would be
confidential, and each player was assigned a code number to be
matched with his name.

Quest Diagnostics of Teterboro, N.J., one of the largest
drug-testing firms in the nation, analyzed more than 1,400 urine
samples from players that season. Comprehensive Drug Testing of
Long Beach, Calif., coordinated the collection of specimens and
compiled the data.

MLBPA Executive Director Donald Fehr criticized the ruling Thursday, saying it was a violation of the Fourth Amendment to the U.S. Constitution.

"We respectfully disagree with the two judges who comprised the majority in this case. As the dissent noted, if this opinion is allowed to stand it will effectively repeal the Fourth Amendment for confidential electronic records.

"Under a search warrant seeking information about only 11 baseball players, confidential records for every player were seized, along with confidential records of thousands of other people with no connection to baseball, including many with no connection to sports. The government seeks to retain all of this private information about thousands of people who were not the subject of any criminal inquiry.

"In his dissent, Judge Thomas said that under this ruling "no laboratory, hospital or health care facility could guarantee the confidentiality of records." That is something which should be of serious concern to all Americans.

"We will consult with our counsel, and then determine what our next step should be in our fight to protect the Constitutional rights -- including the basic right to privacy -- of our members."

Armed with data from both labs, government officials now can
match the positive test samples with the players' names. Those
players then could be called before a grand jury and asked how they
obtained their steroids. If enough testify that they got the drugs
from Bonds' personal trainer, Greg Anderson, it could undermine
Bonds' claim that he didn't know Anderson was supplying him with
illegal substances.

Anderson is currently in prison for refusing to testify in the
perjury probe. He was previously convicted of steroids

Bonds' lawyer questioned why the government continues to pursue
Bonds when he doesn't believe the Giants' outfielder was among
those who tested positive in 2003.

"If Barry is one of the players that did not test positive in
'03 for steroids, I would hope that it would cause the government
to rethink their continuing harassment they've engaged in for
years," attorney Michael Rains said.

U.S. Attorney Kevin V. Ryan of San Francisco said the office is
reviewing the decision "to determine what the next investigative
step may be."

Bonds has always maintained he never tested positive for illegal
drug use. However, federal investigators demanded to see the 2003
test results for Bonds, Gary Sheffield, who was recently traded by
the New York Yankees, the Yankees' Jason Giambi, and seven other

When they raided the testing labs for those 10 results,
investigators also seized computer files containing the test
results of nearly 100 other players not named in the government's
subpoena and warrants.

The testing was part of baseball's effort to determine whether a
stricter drug-testing policy was needed. Because 5 percent or more
of the tests for steroids came back positive, it automatically
triggered the start of testing with penalties in 2004.

Subpoenas were issued to Quest and CDT in late 2003, a day
before the test results were to be destroyed, and in April 2004
Internal Revenue Service agents seized the results and samples.
It's unclear whether the seized data includes test results or
specimens from Bonds.

The players' union sued to keep the government from accessing
the records, saying the seizures violated the players'
constitutional rights.

The 120-page decision from the appellate panel rejects that
claim, and overturns decisions by U.S. District Judges
Florence-Marie Cooper in Los Angeles, Susan Illston in San
Francisco and James Mahan in Las Vegas.

The key opinion, which says federal prosecutors are entitled to
the urine samples and names of those who tested positive, overturns
a ruling by Illston, who sided with the players' union and quashed
the subpoenas, saying they constituted harassment and were

"The district court rested its order on legally insufficient
grounds, and abused its discretion in granting the motion to
quash," Judge Diarmuid F. O'Scannlain wrote for the appeals court.

In dissent, Judge Sidney R. Thomas voted to uphold Illston,
writing that the government's action "suggests an abuse of grand
jury process."

The players' union can now ask for a new hearing before the full
9th Circuit or appeal the panel's ruling to the U.S. Supreme Court.

The union's general counsel, Michael Weiner, declined to
immediately comment, saying he wanted to first review the decision.

Separately, the court also ruled that "the government's
seizures were reasonable under the Fourth Amendment" and sent the
case back to the district court to review what evidence can be used
and what must be returned.

Circuit Judge Richard C. Tallman also heard the appeal.

In dissenting from much of the majority opinion, Thomas wrote:
"It's a seizure beyond what was authorized by the search warrant,
therefore it violates the Fourth Amendment.

"The scope of the majority's new holding could not be greater;
it removes confidential electronic records from the protections of
the Fourth Amendment. ...

"Perhaps baseball has become consumed by a 'Game of Shadows,'"
Thomas added, referring to the book by two San Francisco Chronicle
reporters, "but that is no reason for the government to engage in
a 'Prosecution of Shadows.'"

The government's investigation of the Bay Area Laboratory
Co-Operative, a now-defunct Burlingame supplements lab at the
center of the steroid scandal, already has resulted in guilty pleas
from BALCO president Victor Conte, Bonds' personal trainer
Anderson, BALCO vice president James Valente, chemist Patrick
Arnold and track coach Remi Korchemny.

The case is United States v. Comprehensive Drug Testing Inc.,

Information from The Associated Press was used in this report.