Steroid probe sets dangerous precedent, By: Gene Lyons
January 07, 2007
Some people have art, others theater. Along with millions of similarly uncultivated louts, I have ballgames. To fans, sports offer a temporary refuge from the complicated muddle of everyday life. Lately, though, it's become harder to tell the sports page from the rest of the newspaper. Largely due to money and TV celebrity, jocks now draw outsized personal scrutiny once reserved for Hollywood actors, Washington politicians, serial killers and girl singers who misplace their underpants.
Mostly, it's merely annoying to see sports commentators posing as moral arbiters, prosecutor, judge and jury. Then there's the BALCO investigation in San Francisco, a media-driven probe of steroid abuse by professional athletes that's beginning to rival Kenneth Starr's probe of the Very Naughty President for misplaced prosecutorial zeal and dangerous constitutional precedents.
Incredibly, this seemingly endless federal investigation, whose main purpose appears to be to prevent an unpopular baseball player from breaking a "hallowed" career home run record, or, at minimum, depriving said slugger of public esteem accompanying the feat, now poses serious threats to the First and Fourth amendment rights of all Americans.
See, as long as anabolic steroid abuse was confined to obscure "sports" like bodybuilding (sorry, Schwarzenegger) and professional wrestling, nobody cared. If muscle-bound geeks wanted to bulk up while their privates shriveled, that was their business. No sooner did prosecutors learn that customers of the now-infamous Bay Area Laboratory Co-operative included big-league baseball players, however, than a major scandal took shape.
Chief among the suspected steroid abusers is Barry Bonds, the "controversial" 41-year-old San Francisco Giants slugger who will probably break Henry Aaron's record of 755 lifetime home runs next season, earning a reported $16 million, whether federal prosecutors indict him for perjury or not.
Bonds is controversial mainly because he dislikes reporters and treats them rudely, a self-defeating way for a performer to act. It's said that his father, Barry Bonds, also a star Giants outfielder, and his godfather, Hall of Fame centerfielder Willie Mays, taught him contempt for the media.
Steroids or no steroids, Bonds is the deadliest power hitter in baseball. Unlike Mark McGwire, the Bunyanesque (and equally suspect) slugger whose single-season home run record he broke, Bonds also hits for average, and sets records for intentional walks. Teams rarely pitch to him in clutch situations.
Hardly anybody believes Bonds' testimony to the BALCO grand jury that he never knowingly took steroids, although his personal trainer could have doped him without his knowledge. We know exactly what he said because the transcript was leaked to San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, who reproduced it word-for-word in their book "Game of Shadows," which also featured the bitter recriminations of Bonds' ex-mistress.
Hence the First Amendment threat. A federal judge found both reporters in contempt for refusing to disclose their sources. They face prison should their appeals fail. Even public figures like Bonds enjoy the protection of grand jury secrecy, preventing prosecutors from smearing persons they can't indict. Numerous news organizations have filed briefs essentially demanding blanket amnesty for reporters, rendering those protections almost meaningless. So I'm betting the reporters end up doing time. The Pentagon Papers case this ain't.
Which brings us to the far graver Fourth Amendment issue. See, back in 2003, when steroid use was neither against the rules of baseball, nor, in the case of the "nutritional supplement" McGwire admitted taking, against federal law, the Major League Baseball Players Association negotiated a one-time confidential and anonymous drug test for diagnostic purposes. If more than 5 percent tested positive (8.7 percent did), they'd agree to the testing regimen currently enforced.
Anxious to get evidence about 11 BALCO-affiliated players, including Bonds, prosecutors subpoenaed their test results. Citing the confidentiality agreement, the MLBPA sought to quash the subpoena. (There are many legitimate reasons a player might test positive.) Prosecutors then got a search warrant from another judge who wasn't told the matter was already under litigation - to lawyers, the equivalent of a spitball.
In serving that warrant, the FBI seized computer files containing the test results of all 1,200 players in Major League Baseball, along with the National Hockey League and several other sports organizations. They cited the pretext that the computer lay in "plain view," like a murder weapon found during a drug bust.
Last week, the 9th Circuit Court of Appeals ruled 2-1 that they could keep them - reversing lower courts, which found that BALCO prosecutors had no probable cause, violating privacy rights. The dissenting justice called the raid a deliberate false pretext to gain "confidential medical data about Major League Baseball players who were not under ... particularized suspicion of criminal activity." If the precedent stood, he warned, no doctor's office or hospital in the age of computerized records would be safe from crusading investigators seeking to protect the vaunted "integrity of the game" of baseball or eradicate sin.
