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August 26, 2009 6:35 PM

Ninth Circuit Delivers Big Win for Baseball Players, Three Firms

Posted by Brian Baxter

Major League Baseball's efforts to clean up a steroids problem among players has come up against plenty of legal entanglements. When the government got involved and seized secret player test samples in April 2004, the players' union cried foul.

On Wednesday three firms--Keker & Van Nest, Sidley Austin, and Coleman & Balogh--scored a major en banc appellate win for the players union at the U.S. Court of Appeals for the Ninth Circuit.

"We're extremely gratified by the decision," says Donald Fehr, executive director of the Major League Baseball Players Association. "This has been a collaborative effort from the beginning but [our outside firms] have carried the day-by-day laboring on this and we're certainly glad that we asked them to represent us."

The 9-2 opinion, written by Ninth Circuit Chief Judge Alex Kozinski, agreed with the decisions of three district court judges that found federal agents had improperly seized the samples of 104 players from a drug testing facility despite having a warrant for only ten players linked to the government's BALCO investigation.

Subsequent leaks from the list of 104 have implicated MLB stars like Alex Rodriguez, Manny Ramirez, David Ortiz, and Sammy Sosa for alleged use of performance-enhancing substances. The players' union has come under fire for failing to protect its players.

Lawyers for the union always have claimed that the government forced its hand, and the latest Ninth Circuit decision appears to agree. (Click here for a February interview we conducted on the subject with Keker's Elliot Peters.)

"This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," wrote Kozinski in his opinion.

The en banc ruling was the third opinion to be released by the Ninth Circuit, where the case had bounced around like a bad hop for three years. A three-judge panel sided 2-1 with the government in the first ruling in December 2006. A year later the same panel returned another 2-1 opinion in favor of the government, but on different grounds. In September 2008 the players successfully motioned for a rehearing en banc. The Ninth Circuit vacated both opinions and heard arguments this past December.

"We're quite pleased the court ruled in our favor," says Ethan Balogh, a former Keker partner and founding partner of Coleman & Balogh in San Francisco. He declined to comment on whether any players might have causes of action after being outed in media reports.

Balogh worked on the case with Keker partners Peters and David Silbert. He wasn't the only firm alum representing the union in its years-long fight with the government. G. Whitney Leigh of San Francisco's Gonzalez & Leigh continued representing the union at the district court level after cofounding his own firm in 2005.

Also advising the union was Sidley Austin appellate litigator Virginia Seitz in Washington, D.C. The firm regularly does outside work for the union, says Fehr, adding that the Keker lawyers were brought in to specifically fight the government's seizure of the samples.

Heading up the in-house team at the players' union is outgoing executive director Fehr, current general counsel and Fehr's anticipated successor Michael Weiner, chief operating officer and former associate general counsel Gene Orza, and union lawyer Steve Fehr, the executive director's younger brother.

With Fehr's 14-year tenure leading the union set to end no later than next March, he admits to feeling some gratification that the Ninth Circuit's ruling affirms the union's position that the supposedly secret test samples were seized illegally. But he isn't worried about the union's reputation.

"All you can do when you think that you're right is pursue your available legal remedies," he says. "We always thought we were correct in this case and now the Ninth Circuit has agreed with us." (Click here for a statement by the union on the decision.)

David Bancroft and Jeffrey Hallam of San Francisco's Sideman & Bancroft represented Santa Ana, Calif.-based Comprehensive Drug Testing, the outside firm that handled the drug testing of the players.

Douglas Wilson, former appellate chief of the U.S. attorney's office in San Francisco and now chief of the office's national security unit, argued the case for the government along with current appellate chief Barbara Valliere.

The government has said it has not yet decided whether to appeal.

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