Court: Investigators wrong to seize list

SAN FRANCISCO -- An appeals court ruled Wednesday that federal agents were wrong to seize the infamous drug list and samples of 104 Major League Baseball players who allegedly tested positive for performance-enhancing drugs in 2003.

In a 9-2 vote, the 9th U.S. Circuit Court of Appeals agreed with three lower court judges who chastised investigators who had a warrant for only 10 drug test results as part of the BALCO investigation into Barry Bonds and others.

The panel said federal agents trampled on players' protections against unreasonable searches and seizures.

Chief Judge Alex Kozinski said the players' union had good reason to want to keep the list under wraps, citing leaks of players purportedly on the list.

"The risk to the players associated with disclosure, and with that the ability of the Players Association to obtain voluntary compliance with drug testing from its members in the future, is very high," the judge wrote. "Indeed, some players appear to have already suffered this very harm as a result of the government's seizure."

New York Yankees star Alex Rodriguez and Boston Red Sox slugger David Ortiz have both acknowledged being on the list, and The New York Times has reported the Los Angeles Dodgers' Manny Ramirez and Sammy Sosa could also be found on it.

The government seized the samples and records in April 2004. The list of 104 players said to have tested positive, attached to a grand jury subpoena, has been part of a five-year legal fight, with the union trying to force the government to return what federal agents took during raids.

"This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," Kozinski wrote.

He said the case was a significant test of the government's search and seizure powers in the digital age and issued guidelines for investigators to follow in future raids that included submitting computers to independent computer experts for sorting of data.

Bay Area Laboratory Co-Operative founder Victor Conte has long been critical of the actions of the government, especially then-lead investigator Jeff Novitzky.

"I have said that Novitzky has been using illegal tactics and not following the law since the day of the BALCO raid," Conte said. "He seems to just make up his own rules as he goes along."

U.S. attorney spokesman Jack Gillund in San Francisco said the government was reviewing its options, which could include an appeal to the U.S. Supreme Court.

Players' association lawyer Elliot Peters said the union was happy with the ruling but still angry that names of several players allegedly on the list have been leaked to journalists.

"The leaks were crimes," Peters said. "The people who committed the crimes should be investigated and punished."

Peters declined to say whether he asked a federal judge to look into leaks from the list.

"If the government hadn't unconstitutionally seized this in the first place, there wouldn't have been any leaks," Peters said.

The list's genesis goes back six years, to the time when an agreement between MLB and the players' association on drug policing was just being implemented.

In 2003, baseball conducted survey drug testing -- without penalties. Each player provided a urine sample and an additional follow-up five to seven days later. Up to 240 players could be selected randomly for additional testing.

Two companies were involved, Comprehensive Drug Testing Inc. of Long Beach, Calif., and Quest Diagnostics Inc. of Teterboro, N.J., and samples were marked with codes to keep track as they were processed.

The players' association said it first received the results of the initial round of drug testing on Nov. 11, 2003, and sent a memo on the subject to its members on Nov. 14. Promptly thereafter, union head Donald Fehr has said the first steps to begin destroying the testing materials and records were taken.

But on Nov. 19, the union learned a federal grand jury subpoena had been issued for some of the test results and records as part of the BALCO investigation and the destruction steps halted.

Months of wrangling followed but federal agents finally got a search warrant and seized samples from a Quest lab in Las Vegas and records from CDT in Long Beach on April 8, 2004.

Records the 9th U.S. Circuit Court of Appeals now says the government never should have taken.

"We are very gratified by this decision and hope that this will finally bring this long litigation to a close," said Fehr and union general counsel Michael Weiner in a statement.