February 9, 2009 5:15 AM
The Did-Everyone-Take-Drugs? Chronicles: Our Weekly Look at Sports and the Law
Posted by Zach Lowe
What is it about Alex Rodriguez that compels him to steal the spotlight--even when it's one nobody, including him, wants?
The mind-bending implications of SI.com's Saturday report that, according to four sources, A-Rod was among 104 Major League Baseball players to test positive for steroid use in 2003 are frankly too much for us to sort through right now. One thing we know for sure: for the moment, on the subject of steroids in baseball, Rodriguez has managed to turn the public's attention away from the looming March 2 trial of America's previous PED Public Enemy No. 1, Barry Bonds.
As for Bonds, The Am Law Daily remembers watching him nearly win the World Series on his own in 2002 and telling all of our friends that we were witnessing a better hitter than Babe Ruth. Even then, though, we had a sense that something wasn't right, that his head was too big, that there was something fraudulent about the .700 on-base percentage and all those home runs.
Now we know, courtesy of U.S. District Judge Susan Illston's decision to unseal hundreds of pages of evidence that prosecutors will use to try to prove Bonds lied to a grand jury during the infamous Bay Area Laboratory Co-Operative (BALCO) hearings in 2003.
Those documents show that Bonds tested positive for steroids three times in the months leading up to the 2001 baseball season--the one in which he hit a record 73 home runs. The government also found traces of steroids in a urine sample Bonds submitted in 2003 as part of Major League Baseball's anonymous testing program (the same one that appears to have snared Rodriguez). Also among the documents seized by authorities: BALCO calendars that reportedly outline the doping regimen of an athlete with the initials BB.
Illston, though, has indicated she will not allow a jury to hear anything about the test results or the calendars, since they technically qualify as hearsay without another witness to link them directly to Bonds.
"I was surprised by that," says Michael McCann, a law professor at Vermont Law School and a contributor to the Sports Law Blog and Sports Illustrated. McCann says he thought prosecutors had a solid argument that the tests and calendars would meet any number of exceptions to the ban on hearsay, including the exception routinely made for business records.
That pile of evidence wouldn't guarantee a conviction, anyway, since prosecutors must prove Bonds knew he was taking steroids. Bonds testified before the grand jury that he believed his trainer, Greg Anderson, was giving him flaxseed oil and a pain-relieving balm; Anderson (and BALCO) were really giving him cutting edge steroids called "the cream" and the "clear" that urine tests could not detect.
Still, the exclusion of the evidence would be a major victory for two of the titans of California's criminal defense bar: Alan Ruby and Cristina Arguedas, the two attorneys expected to do the bulk of arguing on behalf of Bonds when the slugger's trial starts.
So whose testimony could link Bonds to the test results? It won't be BALCO mastermind Victor Conte, who told the Los Angeles Times he never knew about the pre-2003 positive test results and worries they could have been contaminated somewhere along the chain of custody.
And it probably won't be Greg Anderson, Bonds's personal trainer and the one man who could practically guarantee a government conviction with his first-hand testimony. But Anderson, of course, served 15 months in prison for refusing to testify before the BALCO grand jury--presumably out of loyalty to Bonds. Anderson's attorney, Mark Geragos (whose other notable clients have included Michael Jackson and ex-U.S. Rep. Gary Condit) has given no indication that Anderson will testify this time.
That leaves prosecutors to rely on testimony from other BALCO customers, such as Jason Giambi, his brother, Jeremy, and Bonds' s former San Francisco Giants teammate, Bobby Estalella. Through them, prosecutors would hope to show that players who got drugs from BALCO knew exactly what they were getting. Brian O'Neill, a Jones Day partner repping Jason Giambi, says he expects his client to receive a subpoena any day now.
"He's going to show up, and he's going to testify," O'Neill says. Giambi likely can't implicate Bonds directly. But Estalella might be able to, McCann says. If they had some open locker room talks about steroids during their time with the Giants, Bonds could be in trouble. The Am Law Daily finds it ironic that a career .216 hitter with 48 total home runs could send baseball's all-time slugger to prison.
McCann says he's also watching the case of Roger Clemens closely. Unlike Bonds, Clemens hasn't been charged with a crime--yet. But his former trainer-turned-government informant, Brian McNamee, has told federal officials he has a syringe with traces of both human growth hormone and Clemens' blood inside it. McNamee has apparently been keeping the steroid in a beer can he found in Clemens trash in 2001.
The syringe could prove Clemens lied to a congressional committee last year when he disputed McNamee's allegations and denied using any performance-enhancing drugs. But there would be a host of issues Clemens's attorneys could use to get the syringe thrown out, including chain of custody and possible contamination by McNamee, McCann says.
Other issues in sports law this week:
• By now, you've surely heard about Michael Phelps's marijuana use and all the sponsorship money it's going to cost him. What you may have missed is the growing marijuana epidemic in Japan's sumo wrestling ranks.
The sport's governing body recently banned four wrestlers for life after they tested positive for marijuana, according to this AP story. Some fans are apparently upset that one of the expelled wrestlers may get severance pay. Apparently, Japanese sports enthusiasts have less tolerance for athletes who fail drug tests than we do over here, where pro basketball and football players get a few chances to cleanup their acts before full-on expulsion.
• Soccer's most famous player, David Beckham, has apparently had his fill of the American version of the game and wants out. He's been on loan from the Los Angeles Galaxy (with whom he signed a five-year, $32.5 million contract two years ago) to AC Milan, one of Italy's premier teams. Beckham says he's "rediscovered" his game in Europe, and AC Milan believes he's "indispensable" to the team--after only five games!
But Beckham is LA property for three more years, meaning there are bound to be some serious negotiations between the two teams over money, contract language, and, perhaps most importantly, the rights to Beckham's image, according to this Los Angeles Times story. Am Law junkies will remember that much of the credit for Beckham's U.S. signing went to Ivan Gazidis, a former Latham & Watkins partner who became deputy commissioner of Major League Soccer and is now running the famous English soccer club Arsenal.
• Sports law devotees probably also remember the big trial win Manatt, Phelps & Phillips and McKool Smith earned on behalf of a class of retired National Football League players who claimed the league's players union was squeezing them out of profits by keeping Electronic Arts from using their names and images in its massively popular John Madden football video games.
Well, the players union, repped by Dewey & LeBouef, has appealed that $28 million verdict to the U.S. Court of Appeals for the Ninth Circuit. Manat's Chad Hummel says he expected the appeal.Make a comment