Hank Aaron, for whom my admiration knows no bounds, became the latest person to join the chorus of those advocating that all 104 names on the list of positive drug tests from 2003 be made public. Others who have said so include Jarrod Washburn, Curt Schilling, Johnny Damon, Ozzie Guillen, Vernon Wells, and countless columnists and bloggers (though this particular blogger eventually reconsidered).
It’s an understandable sentiment. This drip drip drip of names — Alex Rodriguez, Sammy Sosa, Manny Ramirez, David Ortiz — is water torture on the entire industry. And with just four of the 104 names said to be on that list having been outed, one can foresee the leaks continuing to plague the sport for literally years to come. It makes some initial sense to think that releasing the names, en masse, would get it all out into the open and reduce the collective harm of the names coming out in dribs and drabs, re-opening the wound each time.
But it won’t happen. It can’t happen. It shouldn’t happen. One needs to look at the history of the tests in question. The Players Association, bargaining in good faith with MLB, agreed to have its players submit to testing to ascertain whether the problem of performance-enhancing drugs was serious enough to institute a full-fledged testing program. If more than 5 percent of the players tested positive, that would trigger the institution of the program, with penalties for those testing positive, along with public disclosure of the offenders. But the players agreed to this only if the initial “survey” test results remained anonymous. This was critical to their acceptance. In fact, the results were to be destroyed by the union once the testing was completed.
If you’ll recall, there was a movement among players at the time to cajole the union into forgoing its philosophical opposition to drug testing. There was even one team, the Chicago White Sox, that in the spring of 2003, during the survey testing, had several players seriously contemplating refusing to take a test, knowing that in such a case their test result would be counted as positive They wanted to ensure that more than 5 percent tested positive so that full-fledged testing would be instituted. It’s all here in this New York Times story from 2003, including this prescient quote from Sandy Alomar, then with the White Sox, who urged players not to go through with their plan:
”I understand the point that was trying to be made, but I was upset at how some of the veteran guys were trying to pull some of the young guys into this,” Alomar said. ”They would have been branded, and if their names showed up on some steroid list, they would have had to answer questions about it. That wasn’t fair to them.”
As we all know, the names haven’t remained anonymous, due to a complicated series of events that were unforeseen at the time. The union, for reasons that still aren’t clear, was slow on the uptake in destroying the tests. They were informed on Nov. 14 by MLB that more than 5 percent of the players had tested positive (104, it turned out), so full-fledged, penalty-backed testing would begin in 2004. The new wrinkle came on Nov. 19, when the test results were subpoenaed by the government as part of the BALCO investigation. The union complied, but why the tests weren’t destroyed in the five days between Nov. 14 and Nov.19 has never been fully explained.
Whether or not the 104 [positive tests were improperly seized in violation of the Fourth Amendment, as the union claims, is being argued in court, a case that could well go all the way to the Supreme Court. All the government was looking for was the results of the 10 players connected to BALCO; the union is arguing that having all the results seized is illegal. We’ll see. But the damage has been done. So many lawyers, judges and prosecutors involved in the cases have seen the list that it’s not surprising the leaks have occurred, and probably will keep occurring.
But that doesn’t mean that the 100 or so un-outed players on the list deserve to have their rights trampled, just to save baseball some embarrassment. They were promised anonymity, and they still deserve every chance at that. How would you like it if the results of private drug tests you took in conjunction with your employment was suddenly made public? The fact that these players are celebrities, and people pay good money to watch them, doesn’t take away their essential rights, in my opinion.
And who, exactly, is supposed to give up the names? The union, which would be betraying its membership? MLB, which would forever lose any bond of trust it has ever built with the Players Association? Or the court system, which I would guess, though I’m no legal expert, has no authorization to do so? In fact, outgoing union chief Donald Fehr stated after the New York Times wrote its story naming Ortiz as one of those on the list of 104, “The leaking of information under a court seal is a crime. The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime…We intend to take the appropriate legal steps to see that the court orders are enforced.”
I’m not going to get into the legalities or morality of leaking, or publishing, the information. That’s a bigger can of worms than I care to open here. But I believe strongly that the players on the list should not be outed, en masse, just to save baseball some future embarrassment.
(Aaron photo by Associated Press)