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February 9, 2009 7:33 PM

Docket Digging in the A-Rod Steroids Scandal

Posted by Brian Baxter

UPDATE: In an e-mail to The Am Law Daily, Keker & Van Nest partner Elliot Peters said the MLBPA was unable to destroy the samples of the 104 players after the 2003 season because of a government subpoena in November of that year. The raid on CDT occurred the following April. MLBPA executive director Donald Fehr also issued a press release in response to questions about the 2003 drug testing program.

  The Am Law Daily was devastated to hear the news over the weekend that New York Yankee star Alex Rodriguez allegedly tested positive for anabolic steroid use in 2003. Then today, another blow: Rodriguez admitted to ESPN's Peter Gammons that he used performance enhancing drugs during his time with the Texas Rangers.

Once we got past the disappointment, we wondered about who the lawyers were in the illegal search and seizure case pertaining to those controversial 2003 drug tests currently before the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

Unlike the star-crossed New York Yankee third basemen, the docket didn't disappoint. Lawyers from Keker & Van Nest are representing the Major League Baseball Players Association and San Francisco boutique Sideman & Bancroft represents a league-certified drug testing company.

Before we get into what the lawyers are doing, here's a primer explaining how we got to this point:

After a series of embarrassing reports on rampant steroid and performance enhancing drug use in Major League Baseball, the New York-based league and its players association came to a joint agreement whereby players would be subject to random mandatory drug testing during the 2003 season. The tests were supposed to be anonymous and there would be no penalties for positive tests. The results of those tests were ultimately to be destroyed.

The caveat: if more than five percent of the 1,198 players tested during the 2003 season came back with positive results, a permanent drug testing program would be instituted the next season. When 104 players tested positive that season for banned substances, a permanent drug testing policy was put in place.

Around the same time, federal prosecutors in San Francisco launched an investigation of the Bay Area Laboratory Co-Operative (BALCO), a Burlingame, Calif.-based company that allegedly sold designer drugs to athletes like Barry Bonds, Jason Giambi, Marion Jones, and Tim Montgomery.

But the players union evidently did not take the BALCO investigation seriously, as evidenced by its failure to destroy the 2003 testing records. One lawyer involved in the case told ESPN.com as much.

"It indicates how little concern anybody had for the outside investigation initially," says the lawyer on condition of anonymity. "If anybody would have had a brain, they would have realized if we don't destroy this info, it's going to get subpoenaed."

In April 2004, federal law enforcement officials did just that as part of the BALCO investigation, executing a search warrant on Santa Ana, Calif.-based Comprehensive Drug Testing, the company that conducted the 2003 tests. Prosecutors had initially asked players union officials for samples of 10 players linked to the BALCO case, but when the union refused, federal agents seized the samples of all 104 players who tested positive for banned substances, despite the agreement that their names would remain anonymous and that the test results would be destroyed.

The seizure of those samples is at the heart of a dispute currently before the Ninth Circuit between federal prosecutors, CDT, and the players association. Up until Saturday, Rodriguez's name and that of the other 103 players who tested positive in 2003 remained known only to a select few federal prosecutors and their opposing defense counsel in the Ninth Circuit case.

A lower court had sided with the players after it held that such information never should have been seized, but a three-judge appellate court later overturned that decision by ruling that law enforcement officials hadn't violated search and seizure provisions of the Fourth Amendment when taking the CDT records. An 11-judge panel is expected to deliver a ruling on the admissibility of the seized evidence next month. (For a full chronology of the ensuing litigation, check out this story by Yahoo's Jonathan Littman.)

The appellate docket reveals that Keker & Van Nest's Elliot Peters is representing the players association while partners David Bancroft and Jeffrey Hallam from San Francisco's Sideman & Bancroft are representing CDT. Peters recently argued the case for the union before an en banc panel of the Ninth Circuit. None of the lawyers would comment further beyond confirming their representations.

A call to Alan Kluger of Miami's Kluger, Peretz, Kaplan & Berlin, who represented Rodriguez in his high-profile divorce settlement last September, was not returned by the time of this post.

The news of Rodriguez's test results has moved the steroids-in-baseball conversation from beyond the eventual admissibility of evidence to whether the disclosure of these supposedly secret test results could be a crime.

Charles La Bella, a founding partner of San Diego's La Bella & McNamara and former U.S. attorney for Southern California, told Yahoo's Littman that he expects U.S. district court judge Susan Illston to order criminal contempt hearings to determine who leaked the news of Rodriguez's failed test.

"It's unfair to tarnish an individual [i.e., Rodriguez] based on that illegally seized information," La Bella said.

La Bella noted that Illston--the district court judge in the BALCO case who is also presiding over Barry Bonds's upcoming federal perjury trial--previously has ruled that the government was entitled to information gleaned from the raid on CDT in April 2004. And the judge hasn't taken kindly to leakers of privileged material.

Troy Ellerman, a former defense lawyer for BALCO founder Victor Conte, pled guilty in February 2007 to charges that he provided transcripts of confidential grand jury testimony to a reporter from the San Francisco Chronicle. Ellerman was sentenced to 30 months in prison and ordered to pay a $250,000 fine. (Hat Tip: WSJ Law Blog.)

But while government lawyers and union officials are subject to confidentiality orders, other individuals like former teammates and acquaintances of Rodriguez are not stifled by such restrictions and likely therefore remain outside the scope of any potential inquiry by Illston.

One thing we can be sure of is that the latest allegations of performance-enhancing drug use figure to keep lawyers of all stripes busy for some time. Our Am Law Daily colleague Zach Lowe caught up with the Jones Day lawyer representing Jason Giambi--expected to testify in the Bonds case--on Friday. And Jose Canseco's lawyer is hinting that more 'juicyrevelations might be forthcoming.

It all makes us wonder what Kenesaw Mountain Landis would think.

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et tu A-Rod? Well i think we can safely say that baseball's image has been placed neatly in the toilet. Is there anyone who hasn't been using steroids?! One of the other guys has this theory that George W. Bush is the one responsible for the surge in steroid use. Pretty interesting, check it out if you get a chance. But yeah, I think a safer bet would to go ahead and legalize roids and just assume everyone's using them.

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