Why the rest of the names cannot be released

This post originally appeared on NBC’s Circling the Bases on July 31, 2009. However, due to a recent platform changeover at NBC, it can be really hard to find in the archives (here is a link to where it currently resides, though that might change). I’m now reposting it in its entirety, because with the Ortiz business and everything else, it keeps coming up. — Craig

There’s a growing sentiment out there — joined by everyone from crooked guys like Victor Conte to dumb guys like Ozzie Guillen to smart guys like Maury Brown — that baseball or the union or the courts or whoever should just release all the names on the list of the 2003 positive tests. Setting aside the fact that such a thing is practically impossible — actually releasing it all would require a court order itself, and no one else involved in the case has any incentive for it to be lifted — it’s also a horrible idea.

The list, as everyone seems to be forgetting, would not have existed if the people whose names appear on it (and about a thousand others) hadn’t been promised that it would remain confidential while it existed and would be destroyed soon after it was created. Those promises were broken, first by the players’ own union, who violated the players’ trust, and then by the federal government, who, in the opinion of many, overstepped previously-established legal grounds to seize the information in the course of their BALCO investigation. An investigation, mind you, that had nothing to do with the vast majority of the players on the list.

The listed players have had at least two legal duties owed to them breached and two legal rights entitled to them violated: the fiduciary duties owed to them by their union, the contractual duties owed to them by baseball and the testing lab, their Fourth Amendment rights against unreasonable search and seizure, supposedly guaranteed by the U.S. Constitution, and the right to have their medical information kept private, guaranteed by HIPAA. It’s too late for Manny, Papi, A-Rod, and Sosa, but around 100 other of these guys still have not been damaged by these egregious acts, though they will be if their names are released as everyone is so blithely demanding.

And what is to be gained by such a release? The satisfaction of the media, who would love to report and opine on this some more, and the satisfaction of the general public who either gets off on the salaciousness of it or, more commonly, simply wants this all to go away and thinks the quicker the names are out the more likely that is to happen. Call me crazy, but I don’t think my rights to privacy and to the security of my personal medical information are something to be preserved or denied based on how good a story this makes for someone.

If you’re one of those people, however, who simply insist that these guys are cheaters and cheaters are ruining baseball, think about it this way: what if you were involved in a nasty divorce case, and some of the confidential court records — say, a hearing transcript where people were talking about your personal failings, like say, an extramarital affair — were suddenly thrown out to the media? How would you feel if people clamored for “the rest of the records to be released?” What if the drug tests many of you out there have to take as a condition of your employment suddenly showed up on the evening news (“200 Microsoft employees test positive for drugs!”)? Would you be part of the crowd demanding that the names be named?

Of course you wouldn’t, and to the extent people are demanding it of the famous 104 now, they’re only doing so to satisfy their curiosity and/or fill some column inches in their newspaper. Against a backdrop of serial violations of the victims’ rights — and they are victims — such a demand is offensive in the extreme.

Don’t release the rest of the names. And investigate and prosecute the person who has been doing the leaking.

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13 years ago

This tidbit assumes we want the names out to juice up the media and vilify those who tested positive. Not so for me. I want the list out to put the steroid era behind us. Get it out and over with now. I could care less who is get it over with. on it. It’s obvious either people were doing steroids or the test picked up over the counter supplements that ignorant players were taking. Either way who cares, get it over with. I do not want to hear another “leaked name” in two years.

Jason Rosenberg
13 years ago

@Jay – sorry, that ain’t going to happen. As was discussed over at IIATMS (I think), even if they released all 105 names, nothing is over. There are players who used who aren’t on that list. There are players who are using now who weren’t then, or didn’t get caught. There are mistakes on the list. There are rumors. There is no way this ends.

Even if releasing the list would end this whole mess, I’d still be against it, for all the reasons that Craig says. But, to release the list, violate the law (and our principles) and still not change anything? No thanks.

Bob Timmermann
13 years ago

Why is it so important to put “this all behind us?”

Is there some sort of Truth Commission that will use the names on the sealed list to make sense of history?

13 years ago

This matter likewise ends when every copy of the list is destroyed—as they should have been—and everyone with retained knowledge is put under a permanent gag order above and beyond the court seal.

And this is the RIGHT way to end it.

I don’t care what names are on the list. Destroy it and let it be lost to history.

Jorge says no
13 years ago

I keep hearing how terrible it is that the remainder of the names are not being released and being “held over” the players heads. Its a tough spot. Its hard to assume that these names will not somehow be released given the names that have already been leaked and its not fair that only some of the names have been leaked so far.

I dunno if there is a good solution to this. Pandoraks box has been opened and there’s usually no turning back from there

Mike B
13 years ago

I agree with the sentiment of this article.  But as it’s written with a lawyerly air about it, it should be noted that the comparison to 200 microsoft employees testing positive is not an apt one.  The law applies differently to politicians or others – like sports heroes – who are of public interest and who embrace the spotlight.  I’m not saying this justifies release, but it’s still obviously a very different matter than techies testing positive.  It’s newsworthy.

If the names are released, all of the players named should have -some- cause of action against -someone-.  But they aren’t exactly the most sympathetic plaintiffs, are they?  And I’m not convinced that the names getting out would be a bad thing from a global perspective (it’s obviously bad for the players named, but I’m taking a selfish approach here).  It might not fix everything, but it would probably open up a lot of new dialogues.

Craig Calcaterra
13 years ago

Mike—public figures are only treated differently when it comes to defamation law. There’s nothing about their status that gives them lesser rights when it comes to, say, having court orders honored, or having another party to the contract held liable for its breach.

13 years ago

Agreed Bob. We are talking about steroids in baseball here, not apartheid.

There seems to be a desire amongst much of the media (I’m looking at you Buster Olney) to compartmentalise baseball’s drug problem as limited to the steroid era- a brief flash in time between Canseco’s entry into the league and the introduction of mandatory testing. In this meme, drug use was limited to a cadre of ‘greedy’ and ‘selfish’ players.

Of course, this is a load of rubbish. Baseball has been filled with cheats and angle shooters since its inception, just like any other game. It will continue to be in the future (although drug use may take more effort). Given this fact, there is no convincing public interest in disclosure sufficient to overcome some highly important legal rights.