THE BOOK--Playing The Percentages In Baseball

Tuesday, January 16, 2007

The Fourth Amendment, and Baseball

Fabulous article by Michael Dorf.  After the jump, I’ll highlight some interesting parts, but I recommend reading the whole thing.  Also a good article from Wall Street Journal.

(Hat tip: Bob Timmerman)

Indeed, quoting the opinion of one of the district judges whose rulings last week’s decision reversed, dissenting appellate Judge Sydney Thomas asked: “What happened to the Fourth Amendment? Was it repealed somehow?”
...
In order to protect the privacy of the players, CDT resisted the subpoena. After announcing its intention to move to quash (that is, ask a court to nullify) the subpoena, CDT agreed in writing that it would not destroy or disturb samples or data, pending judicial resolution of the motion to quash. Without waiting for a court to rule on the motion to quash, however, the government sought and obtained search warrants for drug test results of the ten baseball players implicated in the Balco case. The government told the magistrate--who had not previously been involved in the case--that CDT intended to move to quash the subpoena, but neglected to mention the written agreement to preserve evidence. Dissenting Judge Thomas thought that this omission rendered the warrant application less than fully honest.
...
In retrospect, it is difficult to see how the Players’ Association could not have anticipated this possibility. The 2003 policy called for testing of its members for the presence of illegal substances, and it was only to be expected that the government might take an interest in gaining access to information about these illegal substances. Because the government was not a party to the agreement governing baseball drug testing, it was not bound by that agreement, and so it was entitled, in the course of a criminal investigation, to seek access even to information that baseball wished to (and had promised players it would) treat as confidential.

The mystery in the Balco case is how sophisticated parties with good legal counsel did not anticipate the peril the 2003 regime created for players and, ultimately, for the game.

I agree with that last quote.  Two parties agree to look for something illegal, and then agree to not disclose it to authorities.  And, they involve a neutral third party to administer the evidence.